High Court · 2009

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 13.2.2009C O R A M :THE HONOURABLE MR.JUSTICE P.K.MISRAandTHE HONOURABLE MR.JUSTICE K.CHANDRUW.P.Nos.4076 of 2006 and 40078 of 2005andW.P.M.P.Nos.4366 of 2006, 42972 and 42973of 20051.M.Sellamuthu2.G.Jayaraman3.G.Sivakumar4.P.Selvaraj5.V.Sellamuthu6.R.Gopal7.R.Sellamuthu8.A.Ramesh9.M.Uthaya Kumar10.M.Murugesan11.P.Jayabalan12.M.Janakiraman13.A.Monna Mohamed14.K.Soundararajan15.S.Janakiraman16.K.Venkatasubramanian17.P.Sivakumar18.S.Duraisamy19.T.Sivagnanam20.P.Subramanian21.S.Anaigoundan22.K.Marimuthu23.T.Prabhakaran24.T.Perumal25.M.Mathesan26.V.Ayyanthurai27.A.Suresh28.R.Sasikumar29.K.Arivalagan30.V.Kumar31.K.G.Ammasi32.K.Kumaran https://hcservices.ecourts.gov.in/hcservices/

33.K.R.Sivakumar34.A.Venkatachalam35.K.Pugalendhi36.D.Venkatesan37.K.Jagadeesh38.V.Palanimuthu39.A.Muthuraj40.K.Sathiyamurthy41.V.Ramajeyam42.A.Palanisamy ... Petitioners in W.P.No.4076 of 20061.K.Paramasivam2.T.Tamilarasan3.R.Saravanan4.P.Neelakandan5.K.Senthil Kumar6.K.Allimuthu7.K.Dhanapal8.M.Ramachandran9.P.Nagarajan10.S.Lakshmanan11.G.Madhu12.S.Radha13.K.Mathappan14.P.Chandru15.P.Saravanan16.S.Murugesan17.C.Srinivasan18.P.C.Mathialagan19.C.K.Sankaran ... Petitioners in WP.40078/2005vs. 1.The State of Tamil Nadu, rep.byits Secretary to Government,Labour & EmploymentDepartment, Fort St.George,Chennai-600 009....R1 in W.P.No. 4076 of 20062.The Tamil Nadu Electricity Board, rep.by its Chairman,800, Anna Salai, Chennai-600 002. https://hcservices.ecourts.gov.in/hcservices/

3.The Chief Engineer (Personnel),Tamil Nadu Electricity Board,800, Anna Salai, Chennai-600 002. ... R2 & R3 in WP. Nos.4076 /2006, and R1 & R2 in WP. 40078 of 2005PRAYER : Petitions filed under Article 226 of the Constitution ofIndia praying for the issuance of a writ of certiorarified mandamusin WP.40078/2005 calling for the records relating to (per.)B.P.(Ch)No.73 (Sectt. Branch) dated 26.3.2002 on the file of the firstrespondent and the consequential order inLr.No.028527/G.57/G.572/2004-1, dated 21.4.2004 on the file of thesecond respondent with respect to the petitioners and quash the sameand direct the respondents to consider the names of the petitionersin a preferential manner in any temporary appointments or onpermanent basis according to their qualifications to calling for therecords relating to letter NO.136650/3581/G57/G571/2005-5 dated3-1-2006 on the file of the 3rd respondent quash the same and directthe respondents 2 and 3 to consider the names of the petitioners forthe post of helper as per the seniority in so far the petitionersconcern.For Petitioners: Mr.L.Chandrakumar For Respondents : Mr.M.Vaidyanathan*****O R D E RK. CHANDRU, J. Heard Mr.L.Chandrakumar, learned counsel representingMr.S.Doraisamy for the petitioners and Mr.M.Vaidyanathan, learnedstanding counsel for the respondent Electricity Board and perused therecords.2. W.P.No.40078 of 2005 was filed by one K.Paramasivam and 18others seeking to challenge the Board Proceedings in B.P.No.73,Secretarial Branch, dated 26.32002 and the consequential order inletter dated 21.4.2004 issued by the Chief Engineer (Personnel)(third respondent) and for a direction to consider the names of thepetitioners in a preferential manner in any temporary appointments onpermanent basis in accordance with their qualifications. Notice wasordered in the writ petition on 16.12.2005. https://hcservices.ecourts.gov.in/hcservices/

3. W.P.No.4076 of 2006 was filed by one M.Sellamuthu and 41others challenging the letter dated 03.1.2006 issued by the ChiefEngineer (Personnel) wherein and by which it was stated that Ex-Apprentices having Wireman trade and Electrician trade and who havecompleted one year of Apprenticeship Training upto 31.3.1995 in theElectricity Board will be called for interviews in terms of CivilAppeal No.5285-5328/ 96 filed by the Electricity Board. Therefore, afresh notification was given in the English and Tamil Dailiesdirecting the Ex-Apprentices who have completed apprentice trainingupto 31.3.1995 and who have not completed maximum age as on01.7.2005 should register their names with the respectiveDistribution Circles of the Electricity Board.4. Pending the writ petition in both the cases, this Court didnot grant any interim relief.5. In so far as the prayer in W.P.No.40078 of 2005 claimingpreference for the trained apprentice in the employment of theElectricity Board is concerned, the matter is squarely covered by thedecision of the Supreme Court in Tamil Nadu Electricity Board -vs-P.Arul and others in Civil Appeal Nos.5285-5325 of 1996 dated03.10.1996. In the said judgment with reference to the claim forpreference, it was observed as follows:-''This Court has, therefore, clearly laid down thatApprentices/Trainees shall have to go through the processof selection provided under the Service Regulations/Rules.Keeping in view the fact that the Apprentices acquiretraining under the same management, they are not requiredto sit in the written test but in a selection where viva-voce test is also provided. It would be necessary for theApprentices to go through the process of viva-voce. ThisCourt has specifically laid down that a trained apprenticeshould be given preference – other things being equal –over direct recruits. In a given case an Engineeringgraduate may be preferred to a diploma holder apprentice.It depends on the Selection Committee and also theregulations /Rules governing the selection.We are of the view that this Court has clearly laiddown that the Apprentice-Trainees have no right to beappointed in preference to other applicants." (Emphasis Added)6. After allowing the appeal filed by the respondentElectricity Board, the Supreme Court gave the following direction inthe aforesaid judgment, which is as follows:- https://hcservices.ecourts.gov.in/hcservices/ ''Mr.Parekh, learned counsel for the Board, has informed usthat the interviews in this case were held in September1994. It is thus obvious that the interviews were heldbefore this court delivered the judgment in U.P.State RoadTransport's case. Even otherwise, it would not beappropriate to make appointments based on an interview,which was held more than two years back. We, therefore,direct the Board to re-advertise the posts. The freshapplicants along with the old applicants including theapprentices shall be considered afresh by following theselection procedure envisaged under the Regulations. TheBoard shall complete the process of selection within fourmonths."(Emphasis Added)7. In the light of the pronouncement of the Supreme Court inrespect of the very same respondent, W.P.No.40078 of 2005 will haveto be dismissed and accordingly it will stand dismissed. 8. In the writ petition, viz., W.P.No.4076 of 2006, it is thecase of the petitioners that they are also trained apprentices andthey are not having ITI certificate in the two trades, namely,Wireman trade and Electrician trade and, therefore, the respondentauthorising its officers to call for applications only from thoseapprentices will be in conflict with the direction issued by theSupreme Court in P.Arul's case (cited supra). Even during thependency of these two writ petitions, a batch of cases came to befiled before this Court in W.P.No.6048 of 2006 etc. batch filed bythe similarly placed persons. Those writ petitions came to bedisposed of by a common order dated 31.10.2007 by one of us(K.Chandru, J.).9. Though the claim of preference was rejected but withreference to the upper age fixed by the Electricity Board, this Courtreferred to the Board Proceedings in B.P (FB) No.25, AdministrativeBranch dated 28.1.2006 and observed in paragraph No.14 as follows:-'' 14. This brings to the last question with reference tothe age bar. It is to the advantage of the petitioners, theState Government itself has come up with a new order inG.O.ms.No.98, Personnel and Administrative Reforms (S)Department, dated 17.7.2006 wherein the State Governmenthas now granted concession of 5 years relaxation in theupper age limit for entering into the government service.This was made as a special case, since there was a ban onrecruitment for several years. The respondent ElectricityBoard also in (Per.) B.P.F.B.No.25 (Administrative Branch)dated 28.10.2006, have adopted the said Government Order. https://hcservices.ecourts.gov.in/hcservices/ Therefore, the majority of the petitioners will now bebenefited by this order. In the light of this relaxation,the candidates belonging to SC/ST communities have theupper age limit of 40 years; for MBCs upto 37 years; forBCs upto 37 years and the open categories upto 35 years."10. The petitioners insisted on the final hearing of these twowrit petitions only after noticing an advertisement given by therespondent Board in various newspapers including 'Dinamalar' dated08.10.2008 wherein they have called for trained apprentices trainedonly in the Wireman and Electrician trades. Therefore,Mr.L.Chandrakumar, learned counsel for the petitioners afterreferring to P.Arul's case contended that the petitioners are alsotrained apprentices, though may not have trained in Wireman andElectrician trade but they are capable of discharging any work if itis entrusted to them as they are also trained apprentices.11. Countering the submission made by the counsel for thepetitioners, Mr.M.Vaidyanathan, learned standing counsel for TNEBstated that the present recruitment as found in the advertisementpertained to distribution circles and the Electricity Board requirestrained persons from those two trades. The petitioners after relyingupon a stray observation made by the Supreme Court cannot claim as amatter of right that they also should be invited for the employmentnotwithstanding the fact that they were not trained in those twotrades.12. In this context, it is necessary to refer to the judgmentof the Supreme Court in Union of India and others -vs- S.Vinod Kumarand others reported in 2007 AIR SCW 5989. There, the Supreme Courtwas concerned with the power of the employer in fixing cut off marksfor recruitment. In that context, the following passages found inparagraphs 10 and 11 are relevant and may be usefully reproducedbelow:-''10. ... We are, therefore, unable to accept thesubmission of the learned counsel that the cut-off marksfixed was wholly arbitrary so as to offend the principlesof equality enshrined under Article 14 of the Constitutionof India. The power of the employer to fix the cut-offmarks is neither denied nor disputed. If the cut-off markwas fixed on a rational basis, no exception thereto can betaken."11. ... Once it is held that the appellants had therequisite jurisdiction to fix the cut-off marks, thenecessary corollary thereof would be that it could not bedirected to lower the same. It is trite that it is for theemployer or the expert body to determine the cut-off marks. https://hcservices.ecourts.gov.in/hcservices/ The Court while exercising its power of judicial reviewwould not ordinarily intermeddle therewith. Thejurisdiction of the Court, in this behalf, is limited. Thecut-off marks fixed will depend upon the importance of thesubject for the post in question. It is permissible to fixdifferent cut-off marks for different categories ofcandidates (see Banking Service Recruitment Board, Madras-vs- V.Ramalingam and others (1998) 8 SCC 523)." 13. Even a reference to the Supreme Court judgment will showthat it is only in case of a recruitment, the question of consideringthe case of trained apprentices will arise along with otherapplicants. In the present case, if the respondent TNEB is wantingcandidates only in a two particular trades that cannot be said to bearbitrary or in violation of the earlier order of the Supreme Court.The Supreme Court did not give any employment guarantee to thetrained apprentices, but on the contrary, it only observed that incase of direct recruitment for any post, the trained apprentices willalso be considered along with them and if everything is found equalthen the trade apprentices will be preferred. That does not mean thatfor each and every post for which an advertisement is made, thepetitioners irrespective of the trade certificate possessed by themcan make a claim for consideration. Though it is contended that therecruitment is for the post of Helper, which is the entry level post,it is open to the respondent TNEB to advertise even to such posts ofHelpers, call for particular trade apprenticeship especially whenrecruitments are made for distribution circles and there is needfor persons trained in particular trades namely Electrician andWireman. There is no illegality or infirmity in the order passed bythe respondent Board.14. In the light of the above, both the writ petitions willstand dismissed. Consequently, the connected miscellaneous petitionswill also stand dismissed. No costs. Sd/- Assistant Registrar /True copy/ Sub Assistant Registrarjs https://hcservices.ecourts.gov.in/hcservices/ To1. The Secretary to Government,Labour & EmploymentDepartment, Fort St.George,Chennai-600 009.2. The Chairman, Tamil Nadu Electricity Board,800, Anna Salai, Chennai-600 002.3. The Chief Engineer (Personnel), Tamil Nadu Electricity Board, 800, Anna Salai, Chennai-600 002. +1 C.C.to Mr.S.Doraisamy, SR.NO.6227/09+1 C.C.to Mr.S.Doraisamy, SR.NO.6228/09W.P.No.4076 of 2006 and 40078 of 2005 andWPMP.Nos.4366 of 2006, 42972 and 42973 of 2005CO-SA18/02/2009