IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 09.03.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NOs.1633 and 2837 of 2011 and M.P.Nos.1 and 1 of 2011 1.R.Saravanan 2.K.Paramasivam 3.P.Lingappan 4.T.Sivagnanam .. Petitioners in W.P.No.1633 of 2011 P.M.Baskar .. Petitioner in W.P.No.2837 of 2011 Vs. 1. The Chairman, Tamilnadu Electricity Board, Anna Salai, Chennai-2. 2. The Chief Engineer-Personnel, Tamilnadu Electricity Board, Anna Salai, Chennai-2. .. Respondents in both writ petitions Both writ petitions are preferred under Article 226 of the Constitution of India praying for the issue of a writ of mandamus to direct the respondents to appoint the petitioners to the post of Helper by giving preference to the apprenticeship training completed by them prior to 13.9.1988 and on the basis of order made in W.A.Nos.1596 and 1597 of 2010, dated 16.11.2010 with all attendant benefits. For Petitioners : Mr.L.Chandrakumar For Respondents : Mr.M.Vaidyanathan for TNEB COMMON ORDER These two writ petitions were filed by the petitioners seeking for a direction to the respondents to appoint them to the post of Helpers by giving them preference to their apprenticeship training completed by them prior to 13.9.1988 and also on the basis of the order made in W.A.Nos.1596 and 1597 of 2010, dated 16.11.2010. https://hcservices.ecourts.gov.in/hcservices/ 2.In the first writ petition, there are four writ petitioners and in the second writ petition, there is only one petitioner. The deponent to the affidavit in the first writ petition as well as the petitioner in the second writ petition are already 44 years. In fact their own claim was that they have completed the training in the Apprenticeship scheme floated by the Electricity Board even before September, 1988 which is 22 years before. The petitioners have completed apprenticeship training and since their completion of apprenticeship in the Board, several recruitments have taken place in the respondent Board. Nowhere they have stated as to what they were doing all these years. The petitioners are not eligible to get an entry into employment in the Electricity Board as they were overaged as per the Tamil Nadu Electricity Board Service Regulations. 3.The first petitioner claiming his right on the basis of the writ petition filed by him along with 12 others in W.P.No.5666 of 2004. In that writ petition, this court directed the respondent Board by an order dated 9.3.2004 to consider appointing them in the next vacancies on the basis of the guidelines issued by the Supreme Court in C.A.No.5285 to 5328 of 1996, dated 3.10.1996 in Tamil Nadu Electricity Board Vs. P.Arul and others. 4.In the second writ petition, the petitioner did not even send any representation. Both writ petitioners only rely upon the judgment of a division bench in W.A.Nos.1596 and 1597 of 2010, dated 16.11.2010. In that case, the division bench had rejected the appeals filed by the Board and directed preference in terms of B.P.242, dated 26.6.1984. Though the Board had contended that the said B.P was superseded by B.P.F.B.60, dated 13.9.1988, this Court had relied upon a judgment of this court in P.Dharmaraja Vs. Tamil Nadu Electricity Board and another reported in 1989 (1) LLN 105 and directed the Board to consider the case of apprentices who had completed their training of apprenticeship before the crucial date i.e., on 13.9.1988. This was on the ground that no proper explanation was offered by the Board in not granting them appointment. But, however the division bench did not consider the full import of the judgment rendered by the Supreme Court in P.Arul's case (cited supra) in Civil Appeal Nos.5285 to 5328 of 1996, dated 3.10.1996, even though a reference was made to the Supreme Court decision as found in paragraph 5 of the judgment. 5.In W.P.No.1633 of 2011, even the petitioners' case which was ordered earlier in W.P.No.5666 of 2004, dated 9.3.2004, was only to consider the case of the petitioners in the light of the Supreme Court judgment in P.Arul's case (cited supra) in Civil Appeal Nos. 5285 to 5328 of 1996. In the second case, there was no reasonable explanation as to what the petitioner was doing since the last 22 years. In fact, a division bench of this court in P.Arul and 237 others Vs. Tamil Nadu Electricity Board reported in 1996 WLR 215 had upheld the claim of trained apprenticeship and had directed the Board to grant appointments to the trained https://hcservices.ecourts.gov.in/hcservices/ apprentices. Speaking for the division bench, D.Raju, J (as he then was) in paragraph 30 gave the following directions: "30.For all the reasons stated above, we allow the Appeals and the Writ petitions in the following terms:- (1) The order of the learned single judge dated 20.12.1994 in W.P.Nos.12091 of 1994 etc., is set aside. (2) The order of the State Government dated 18.7.1979 as amended by the orders dated 6.12.1980 constitute directions on questions of policy within the purview of Section 78-A (1) of the Electricity (Supply) Act, 1948 and shall be binding upon, and given effect to by, the Tamil Nadu Electricity Board. (3)The Board's Proceedings dated 18.9.1988 impugned in some of the writ petitions in as much as it is opposed to the statutory directions of the State Government under Section 78-A (1) of the Electricity (Supply) Act, 1948 as such it is unenforceable and cannot stand in the way of the appellants/petitioners getting their claims considered preferentially to those direct-recruit raw hands. Therefore, the said proceedings of the Board are quashed. (4)The Tamil Nadu Electricity Board shall meticulously and effectively apply the directions contained in the order of the State Government dated 18.7.1979 as amended by the order dated 6.12.1980 referred to above in direction No.2, and the ratio of the decision of the Supreme Court of India reported in (1995) 1 S.C.C. 1 (supra) and consider the claims of trainees-apprentices who have successfully completed their apprenticeship, for employment in terms of the guidelines, principles and directions contained in paragraph 12 of the said decision. (5)The apprentice trainees, who have successfully completed their training with the Tamil Nadu Electricity Board, shall not be subject to any further test or process of selection, except the criteria and guidelines contained in para 12 of the Supreme Court decision (supra) and the orders of the Government issued under Section 78-A(1) of the Electricity (Supply) Act, 1948 referred to above in the directions at Nos.2 and 4. No costs." 6.It is these directions given by the division bench which was taken on appeal by the Board. The Supreme Court in the civil appeals filed by the Board in Tamil Nadu Electricity Board Vs. P.Arul by an order dated 03.10.1996 had reversed the decision of the division bench. In that judgment, Justice Kuldip Singh, who had rendered the earlier judgment in U.P.State Road Transport https://hcservices.ecourts.gov.in/hcservices/ Corporation and another Vs. U.P. Parivahan Nigam Shishukhs Berozgar Sangh and others reported in 1995 (2) SCC 1 had considered the scope of the earlier judgment and had clarified his own earlier judgment. Since the basis of the claim of the writ petitions was on the basis of the said judgment of the Supreme Court, it is necessary to extract the relevant portion of the judgment of the Supreme Court, which reads as follows: "P.Arul and 945 others respondents in herein were working as Apprentices in terms of Apprentices Act, 1961, (the Act) with in Tamil Nadu Electricity Board (the Board). They challenged the selection – process initiated by the Board of recruitment to the cadre of technical Assistants, interalia, on the ground that they were in titled to be appointed in preference to the other applicants. Learned single judge of the Madras High Court dismissed the bunch – petitions. The judgment of the learned single judge was however, set aside in the writ appeals by the Division Bench of the High Court. The Division Bench came to the conclusion that the respondents were entitled to be appointed without going through the process of selection. These appeals by the Board are against the judgment of the Division Bench of the High Court. This Court in U.P. State Road Transport Corporation and another Vs. U.P.Parivahan Nigam Shishukhs Borezar Sangh and others 1995 (2) SCC 1, considered the scope of the Act and has laid down the following guidelines to be kept in view the employer while considered the scope of the Act and has laid down the following guidelines to be kept in view by the employer while considering the Apprentice Trainees for employment. "12. In the background of what has been noted at above. We state that the following would be kept in mind while dealing with the claim of train to employment after successful completion of then training. 1.Other things being equal, a trained apprentice should be given preference over direct recruits. 2.For this trainee would not be required to get his name sponsored by any employment exchange. The decision of this court in Union of India vs. N.Hargopal would permit this. 3.If age bar would come in the way of the trainee, the same would be relaxed in accordance with what is stated in this regard. If any, in the service rule concerned. If the service rule be silent on this aspect, relaxation to the extent of the period for which the apprentice had undergone training would be given. 4.The training institute concerned would maintain a list of the persons trained year wise. The https://hcservices.ecourts.gov.in/hcservices/ persons trained earlier would be treated as senior to the persons trained later. In between the trained apprentices, preference shall be given to those who are senior" This Court has further observed in para 13 of the judgment as under: "We make it clear that while considering the cases of the trainees for giving employment in suitable posts, what has been laid down in the service Regulation of the Corporation shall be followed expect that the trainees would not be required to appear in any written examination, of any provided by the Regulations. It is apparent that before considering the cases of the trainees, the requirement of their names being sponsored by the employment exchange would not be insisted upon. In so for as the age requirement is concerned, the same shall be relaxed as indicated above. This Court has, therefore, clearly laid down that the Apprentices/ Trainees shall have to go through the process of selection provided under the service Regulation / Rules. Keeping in view the fact that the Apprentices acquire training under the same management they are not required to sit in the written test but in a selection where viva – voce test is also provided, it would be necessary for the Apprentices to go through the process of viva – voce. This Court has specially laid down that a trained apprentice should be given reference – other things being equal direct recruits. In a given case an Engineering Graduate may be preferred to a diploma holder apprentice. It defendants on the selection Committee and also the Regulations / Rule governing the selection. We are of the view that this Court has clearly laid down that the Apprentice-Trainees have no right to be appointed in preference to other applicants. The Division Bench of the High Court based its finding on the following reasoning: "On a careful analysis of the directions and guidelines issued by the Supreme Court we are of the view that their Lordship of the Supreme Court do not appear to have subscribed to the idea of subjecting the apprentices who have successfully completed their training to any other of further selection process expect satisfying the norms formulated in paragraph 12 and the person concerned being so observed and appointed thereafter according to the inter–se– seniority reckoned with reference to the formula No.94) of para 12 of the (1995) 1-S.C.C. (Supra) viz yearwise seniority. We are of the view that the High Court fell into patent error, After indicating the four benefits to which the apprentice -trainees would be entitled https://hcservices.ecourts.gov.in/hcservices/ during the process of selection, this court in para 13 has, in clear terms, stated that the trainees shall have to go through the process of selection provided under the service Regulation / Rules. In the present case the Board / Regulations specially provided that the post of Technical Assistant is to be filled by way of selection. All the applicants including the Apprentice are therefore, required go through the process of selection provided under the Regulations. This has not been done in the present case and the Division Bench of the High Court has directed the Board to appoint the respondents on preferential basis and without going through the selection process. Before parting with this order, we make it clear this this Court has U.P.State Road Transport case (Supra), interpreted the provisions of the Act. All instructions issued by the Central Government or by the State Government in this respect shall have to be read in conformity with the law down of this Court. Mr.Parek learned Counsel for the Board has informed us that the interviews in this case were held in September 1994. It is thus obvious that the interviews were held before this Court delivered the judgment in U.P.State Road Transport's case. Even otherwise, it would not be appropriate to make appointment based on an interview which was held more than two years back. We, therefore, direct the Board to re-advertise the posts. The fresh applicants along with the old applicants including the apprentices shall be considered afresh following the selection within four months. We allow the appeals, set aside the Division Bench judgment of the High Court, No costs." 7.Even subsequent to the said judgment in respect of other institutions, similar view was taken by a division bench of this court in K.Venkadesan Vs. The Chairman-cum-MD, NLC, Neyveli and others reported in 2007 (3) CTC 161. When subsequent to the order passed in Arul's case (cited supra) by the Supreme Court, the Electricity Board had several direct recruitments programmes, wherein trained apprentices were directed to consider without their being sponsored by the employment exchange. The Board was also directed to give exemption from the age relaxation to the extent of excluding the years taken up for undergoing the apprenticeship programme. 8.The division bench in its judgment mentioned that Justice Khalid Commission had recommended employment of 18,000 workers and therefore, there is no impediment for the trained apprentices being recruited. Even before the appointment of Justice Khalid (12.7.1990) by the Supreme Court, the Tamil Nadu Electricity Board by getting orders from this court had appointed 7000 trained apprentices. For a reference on this aspect, paragraph 101 of the Justice Khalid's report may be extracted: https://hcservices.ecourts.gov.in/hcservices/ "101.In the claims statement filed by the Board, it is stated that "the High Court of Madras passed orders in W.M.P. that if and when the Electricity Board employes fresh hands, employment of fresh hands would be without prejudice to the rights of the present appellant and that the fact that new hands have been employed would not be permitted to be pleaded as a bar to the claims of the present appellant. In pursuance to the orders of the court, about 7,000 fresh hands with National Trade Certificate/National Apprentice Certificate have been recruited." Thus on the Board's own admission, 7,000 fresh hands have been recruited. The court's order states that this recruitment is without prejudice to the rights of the existing workers. To start with therefore, an equal number from the existing workers can be recruited. Therefore, I hold that 7,000 workers from among the three Petitioners' Union have to be recruited first without delay." Even after the absorption of the contract labours as directed by the Board, there were several recruitment drive of the trained apprentices and the petitioners never questioned these recruitments. 9.In a series of writ petitions when challenges were made to such direct recruitments and claim for preference was made, this court had rejected those candidates' plea in view of the binding precedent of the Supreme Court on the very same issue. In the present case, heavy reliance was placed upon the division bench order, dated 16.11.2010. Hence it is necessary to state that the view taken on the basis of P.Dharmaraja Vs. Tamil Nadu Electricity Board and another reported in 1989 (1) LLN 105 and it was held that it was a well considered judgment and any candidate who had gone through training before 13.9.1988 must be given preference. First of all, that judgment cannot be made use of by the petitioners as they were never in the picture for the last 22 years. Secondly, the division bench in P.Arul and 237 others Vs. Tamil Nadu Electricity Board reported in 1996 WLR 215 though extended the benefit to even post 13.9.1988 trainees, the Supreme Court had reversed the judgment of the division bench as cited above. In fact, Dharmaraja's case (cited supra) was relied on by the division bench as found in paragraph 23 of the said judgment. 10.Further, law has been settled by the Supreme Court that trained apprentices must go through selection process and if only when two candidates are equal in all respects, then preference can be given to trained apprentices. But insofar as the trained apprentices are concerned, they were given limited exemption from age and also from being sponsored by the employment exchange. Therefore, the petitioners would have gone through selection process earlier, though their affidavits were silent on this aspect and did not speak about their being either gone through selection https://hcservices.ecourts.gov.in/hcservices/ process or not. In any event, in the first writ petition the earlier prayer of the petitioners was to consider their request in the light of the Supreme Court judgment in Tamil Nadu Electricity Board Vs. P.Arul, and it does not talk about apprentices being given preferential appointment, but only preference in the selection process when two candidates are approximately equal. The petitioners having overaged and after a period of two decades cannot institute these writ petitions and seek for employment solely based upon the division bench judgment. In the division bench judgment, there is no reference to the earlier division bench judgment in Arul's case being reversed by the Supreme Court or the subsequent division bench in K.Venkadesan's case (cited supra). Even otherwise, the petitioners cannot come to this court with a claim which is two decades old and that they are guilty of laches. The writ petitions are liable to be rejected on that score also. 11.In this context, it is necessary to refer to the latest judgment of the Supreme Court in Union of India and others Vs. A.Durairaj reported in 2011 AIR SCW 873. In paragraph 14, the Supreme Court had observed as follows: "14.This is a typical case where an employee gives a representation in a matter which is stale and old, after two decades and gets a direction of the Tribunal to consider and dispose of the same; and thereafter again approaches the Tribunal alleging that there is delay in disposal of the representation (or if there is an order rejecting the representation, then file an application to challenge the rejection, treating the date of rejection of the representation as the date of cause of action). This Court had occasion to examine such situations in Union of India V. M.K.Sarkar [2010 (2) SCC 59] ; (2009 AIR SCW 7621 : 2010 Lab IC 575 : AIR 2009 SC (Supp) 2158) and held as follows (para 9 of AIR SCW): "The order of the Tribunal allowing the first application of respondent without examining the merits, and directing the appellants to consider his representation has given rise to unnecessary litigation and avoidable complications. x x x x When a belated representation in regard to a 'stale' or 'dead' issue/dispute is considered and decided, in compliance with a direction by the Court/Tribunal to do so, the date of such decision cannot be considered as furnishing a fresh cause of action for reviving the 'dead' issue or time-barred dispute. The issue of limitation or delay and laches should be considered with reference to the original cause of action and not with reference to the date on which an order is passed in compliance with a court's direction. Neither a court's direction to consider a representation issued without https://hcservices.ecourts.gov.in/hcservices/ examining the merits, nor a decision given in compliance with such direction, will extend the limitation, or erase the delay and laches. A court or tribunal, before directing 'consideration' of a claim or representation should examine whether the claim or representation is with reference to a 'live' issue or whether it is with reference to a 'dead' or 'stale' issue. If it is with reference to a "dead" or "stale" issue or dispute, the court/tribunal should put an end to the matter and should not direct consideration or reconsideration. If the court or tribunal deciding to direct 'consideration' without itself examining the merits, it should make it clear that such consideration will be without prejudice to any contention relating to limitation or delay and laches. Even if the court does not expressly say so, that would be the legal position and effect." 12.In the light of the above, both writ petitions will stand dismissed. However, there will be no order as to costs. Consequently, connected miscellaneous petitions stand closed. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar vvk To 1. The Chairman, Tamilnadu Electricity Board, Anna Salai, Chennai-2. 2. The Chief Engineer-Personnel, Tamilnadu Electricity Board, Anna Salai, Chennai-2. 1 cc To M/s.L.Chandrakumar, Advocate, SR.17568 1 cc To Mr.M.Vaidayanathan, Advocate, SR.17159 W.P.NOs.1633 and 2837 of 2011 RV (CO) RH (12.4.11) https://hcservices.ecourts.gov.in/hcservices/