IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 04.03.2008 CORAM THE HONOURABLE MR. JUSTICE S.J.MUKHOPADHAYA AND THE HONOURABLE MR. JUSTICE M.VENUGOPAL W.A. NOS. 1613 OF 2007 & 179 OF 2008 AND M.P. NOS. 1 OF 2007 & 1 OF 2008 W.A. No. 1613 of 2007 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. .. Appellants/Respondents 1 & 2 - Vs - 1. 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. 2. 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. 3. A.L.Suresh Babu 4. G.Mohan 5. Tamil Nadu Minkalazhaka Thozhilalar Munnetra Sangam rep. by S.Rathinasabapathy, General Secretary No.800, Anna Salai, Chennai 600 002. .. Respondents https://hcservices.ecourts.gov.in/hcservices/ W.A. No. 179 of 2008 1. 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. .. Respondents Writ Appeals filed against the order dated 19th Dec., 2007, passed by learned single Judge in W.P. No.10055 of 2006 and 37443 of 2005. Writ Petitions under Article 226 of the constitution of India to issue (1) Writ of Mandamus, directing the respondent to consider and promote the qualified Assistants (Accounts) to the post of Account Supervisor who possess the passing of Special Test as specified in Rule 96(i)(b) of the Tamil Nadu Electricity Board Service Regulation by preparing 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 up the post of (existing as well as that may be sanctioned) Assistant Accounts Officer, Accounts Supervisor and Assistants by giving promotion or by upgradation of the employees who do not possess the qualification of passing the special test as specified in Regulation 96(i) (b) of TNEB Service 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 179/08 For 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 179/08 COMMON JUDGMENT S.J.MUKHOPADHAYA, J. As both these appeals have been preferred against common order dated 19th Dec., 2007, passed in different writ petitions, they were heard together 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 was finally made by the Tamil Nadu Electricity Board (hereinafter referred to as 'Electricity Board') and as majority of the offer given by the electricity board has been accepted by the parties, it is not necessary to discuss all the facts except the relevant ones. 3. The electricity board reached a settlement with a number of employees Unions/Federations/Associations/Sangam u/s 12 (3) of the Industrial Disputes Act, 1947, in regard to revision of wages, work allocation and staffing pattern, vide proceeding No.B.2/70538/05 dated 15th 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 reached on the said subjects, whichever is later. No new settlement having yet reached, the aforesaid settlement is still in vogue. As per the aforesaid settlement dated 15th Oct., 2005, work allocation and staff pattern for accounting staff in Revenue Branch of Division Office in Distribution Circles were reflected at Part-II, as quoted hereunder :- https://hcservices.ecourts.gov.in/hcservices/ Sl. No. Existing Revised 1) One Revenue Branch for each O&M Division One Revenue Branch for each O&M Division 2) Norms for one Accounts Assistant – 2200 effective services Norms for one Accounts Supervisor – 4400 effective services 3) For supervising work there will be one Accounts Supervisor for each two Accounts Assistant ------ 4) Effective services mentioned above will be computed as follows :- From the total number of services in Revenue Branch a) Services remaining disconnected for a period exceeding six months will be excluded, and b) Services free of electricity charges will be completely excluded Effective services mentioned above will be computed as follows:- Effective services remaining disconnected for a period exceeding six months will be excluded and each Agricultural service and each Hut service will be reckoned as one fourth of a service. 5) One General section for preparing Cash book, Cost Statement, Bank Reconciliation, rendering Accounts with the following staff :- Accounts Supervisor – 1 Assistant - 2 Junior Assistant - 3 The General Section for preparing Cash book, Cost statement, Bank Reconciliation, rendering Accounts with the following staff:- Accounts Supervisor – 1 Assistant - 2 Junior Assistant - 2 https://hcservices.ecourts.gov.in/hcservices/ 6) Revenue Accounting work such as Consumer Ledger posting, Statistical return and Allied works are attended by Accounts Assistant Revenue Accounting work will be attended by Accounts Supervisor. The Accounts Supervisor in the Revenue Branch shall verify the correctness, specify Electricity Tax and shall post the credit entries in the Modified Meter Card Register (To be introduced). After posting of credit with reference to Assessor's Remittance challan, IA/PCB the Accounts Supervisor in the Revenue Branch shall arrive at the balance amount of the respective service connections in the Modified Meter Card Register. The Accounts Supervisor in the Revenue Branch shall verify the Meter reading, assessment detail in the Modified Meter Card Register and the discrepancies or shortfall if any shall be recorded in the relevant columns in Modified Meter Card Register in order to include such shortfall by the Assessment staff in the next assessment. The calculation of Electricity Tax should be worked out and shown in the relevant column in the Modified Meter Card Register by the Accounts Supervisor in the Revenue Branch and be journalized for making payment to the Chief Electrical Inspector to Government. Apart from the above work, the Accounts Supervisor in the Revenue Branch will maintain a Register of Abstract of Modified Meter Card Register in which, page wise assessment, collection, balance (Division wise) will be entered from the Modified Meter Card Register and total assessment, collection, balance of the respective Distributions arrived at and reconciliation for each month done and recorded in the said Register of Abstract. The accounting and allied work norms hither to attended by the Assistant in the Revenue Branch will be attended by the Accounts Supervisor. Any other related works assigned by Assistant Accounts Officer/Executive Engineer has to be attended by the Accounts Supervisor. https://hcservices.ecourts.gov.in/hcservices/ 4. After the settlement, the Chief Engineer (Personnel) of Electricity Board, vide letter No.019774/127/G29/G292/2006-1 dated 14th March, 2006, called for names from amongst "qualified/unqualified Accounts Assistants ", who have passed accountancy – lower grade examination or its equivalent for preparation of panel for promotion to the post of Accounts Supervisors. After few days, vide another letter No.019774/127/G29/G292/2006-2 dated 20th March, 2006, the Chief Engineer kept the said order in abeyance. Subsequently, names were called for only from qualified persons, who have passed requisite departmental examination. The electricity board has its own Service Regulations. Under Regulation 96 (1) (a), special test and other qualification prescribed for appointment/promotion to one or other post. Under clause (1) (b) of Regulation 96, at S. No.2, the requisite test prescribed for appointment/promotion to accounts cadre in the office of circle and accounts branch. Therein, at S. No. (ii), for the post of Accounts Supervisors, passing of accountancy – lower grade examination has been prescribed. As per the said qualification prescribed under the regulations, name of eligible persons were called for and a panel was prepared for promotion to the post of Accounts Supervisors vide memo No.019774/127/G29/G292/2006-8 dated 26th Dec., 2006, showing list of 1677 persons at Annexure – A as fit and selected for promotion. A separate list of Accounts Assistants 'not selected' and another list of Accounts Assistants whose case had been 'deferred' have also been shown at Annexure – 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 qualified Accounts Assistants to the post of Accounts Supervisors, who have passed the special test as specified under Regulation 96 (1) (b). Another writ petition, W.P. No.37443/05 was also preferred by the same petitioner, 1st respondent in W.A. No.1613/07, for issuance of a writ of mandamus to forbear the respondents – Electricity Board and its officials from filling up the post of (existing as well as that may be sanctioned) Assistant Accounts Officer, Accounts Supervisors and Assistant by giving promotion or by upgradation of the employees, who do not possess the qualification of passing the special test as specified under Regulation 96 (1) (b). There were other writ petitions, which were also preferred by one or other Association, but we are not concerned with those cases. 6. During the pendency of the case, on 3rd Jan., 2007, about 1000 Accounts Assistants were promoted to the higher post of Accounts https://hcservices.ecourts.gov.in/hcservices/ Supervisors out of the existing panel. In the counter affidavit originally filed, the Electricity Board took plea that the Board is considering the demand of the Unions to dispense with the prescribed qualification of passing Accountancy – Lower Grade examination. At para- 10, it was stated that steps have been taken for computerisation of Assessment and Collection and at para-11 the following vacancy position was shown :- "11. Consequent on the present revision of work allocation and staff pattern in revenue accounting staff in Revenue Branch the particulars with regard to the total number of effective services also with staff strength utilised have been called for. Pending receipt of these particulars, the requirement of Accounts Supervisors based on new norms are worked out approximately and furnished below :- Total No. Of Service (excluding Hut & Agricultural Service) (3670 x 4400 = 1,61,48,000) : 1,77,00,000 Norms per Accounts Supervisor : 4400 Services No. of Accounts Supervisor to look after the services : 3670 Already Utilised : 1724 Balance Required : 1946 So far as those who have not passed the requisite examination, referring the settlement made between the parties, the following statement was made :- "12. ........ There are large numbers of vacancies in Accounts Cadre in Revenue Branch and the Accounts supervisor in the Revenue Branch have to exercise the same work as that of the Billing Assistant (Accounts). The unqualified persons have long years of service and have more experience and many of them are on the verge of retirement. At this stage, it is relevant to point out that in the Administrative cadre, normally promotion is given to Administrative Assistant in or about 12 years and no special qualification test are prescribed. However, in the Accounts cadre, even after 14 years, large number of Assistants are stagnated without promotion on the ground of not passing of the prescribed special test. https://hcservices.ecourts.gov.in/hcservices/ 13. In so far as the averments contained in paragraph 3 of the affidavit under reply, it is submitted that the question of dispensing with special test provided under Regulation 96 (1) (b) has to be considered as a one-time measure in the context of settlement entered into between the Board and the recognized unions under Section 12 (3) of the I.D. Act, 1947. As per the settlement now entered into by the Board with the unions on 15.10.2005, the nature of work already attended by the Assistant (Accounts) is now attached to the promotional post of Accounts Supervisor and the practical experience would make them fit for promotion to post of Accounts Supervisor. In view of the circumstances stated above and also considering the stagnation in the cadre, the special test is proposed to be dispensed with. * * * * * * * 15. In view of the pendency of the above writ petition No.37443/05, and in view of the direction of their Honourable Court permitting the promotion of candidates who possess requisite qualification only, the respondent has not made suitable amendment for dispensing with the special test required for promotion to the post of Accounts Supervisor." In the said counter affidavit, the Electricity Board also assured that the remaining persons in the panel will be promoted, as mentioned at para-16 and quoted hereunder :- "16. In respectfully submit that there has been a considerable change in the workload after the settlement entered into on 15.10.2005. The revised working arrangement necessitates for the promotion of a more number of Accounts Supervisors. As directed by the Honourable High Court, Madras, panel for promotion of 1678 qualified Assistant (Accounts) to the post of Accounts Supervisor were approved. Out of 1678 employees, 1000 Assistant (Accounts) were promoted on 3.1.2007 and the remaining 678 will be promoted shortly. Of the 2223 vacancies, there are remaining 545 vacancies to be filled up. Since persons who do not pass the Accountancy (Junior Grade) are only available, exigencies necessitate the promotion of such persons also as Accounts Supervisors in the vacancies aforesaid. The quality of work will not suffer in view of the long experience they have rendered." 7. Subsequently, an additional counter affidavit was filed. Therein, while giving reference to implementation of computerisation of Assessment 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 computerised environment assigned by superiors without confining to norms. At para-9 it was stated that in view of introduction of computers as envisaged under the settlement dated 15th Oct., 2005, need for employment of prescribed number of Accounts Supervisors as per settlement dated 15th Oct., 2005, will cease to exist. Prayer was made to dismiss the writ petition. 8. Learned single Judge, by impugned common order dated 19th Dec., 2007, taking into consideration that the validity of panel is upto December, 2007, and that the settlement is binding on parties, including Electricity Board, while held that Electricity Board cannot be compelled to create vacancies, in view of the vacancy position shown, directed the Electricity Board to fill up the rest of the vacancies by giving promotion to the rest of the 677 persons in the panel. So far as the writ petition, W.P. No.37443/05 is concerned, taking into consideration that only the eligible candidate has been empanelled for promotion to the post of Accounts Supervisors, learned single Judge declared the said petition as infructuous. 9. When the appeals were heard, Mr.Radhakrishnan, learned senior counsel for the Electricity Board argued the case in length, and made the following submissions :- a) In view of computerisation, first phase of which has already been completed in October, 2007, and second phase of which may be completed within few months in this year (2008), a fresh assessment to be made with regard to need of post of Accounts Supervisors, which may be less. More workload may be given on the Accounts Supervisors, who are provided with 4400 effective service per head pursuant to the present settlement. b) No person has a right for promotion and mere existence of name in a 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 had not passed the requisite departmental examination, though qualified persons were available. Somehow or the other, the said requisition calling for names of unqualified persons was kept in abeyance and panel of qualified successful candidates was prepared and approved on 20th Dec., 2006. Though there were large number of vacancies, as shown in the counter affidavit, but only 1000 persons were promoted on 3rd Jan., 2007 and with regard to the rest, assurance was given that they will be promoted immediately. Suddenly, by filing an additional counter affidavit, the officers of the Electricity Board changed their stand and it was highlighted that computerisation was going on and, therefore, a fresh settlement u/s 12 may have to be reached. However, it was accepted that no subsequent settlement has been made and the settlement dated 15th Oct., 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 on the ground that his name is appearing in the panel; it is also open to the employer to decide how many posts are to be filled up on the basis of their need/administrative exigency. Similarly, bona fide decision taken by employer not to make appointment ought not to be interfered with. Recruitment process could be suspended if certain irregularities or illegalities 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 given before this Court that all the posts will be filled up from the existing panel, but without any basis, the Chief Engineer, by filing an additional affidavit, suddenly changed his stand; the Court wanted to know the grounds; as the Electricity Board could not explain the grounds, the Court had to call for and go through the original records. On perusal of the original records, while it appears that some H.O.D.s, after filing of the writ petition, made certain observations relating to on-going computerisation, the Chief Engineer, while proposing a note, made certain change in his stand. There is nothing on the record to suggest that any reassessment relating to working strength was made by the Electricity Board nor there is anything on the record to suggest that the Electricity Board, consisting of its Chairman and other members, took any decision not to act on the panel after promotion of certain candidates. It is in this background that different suggestions were made; at the instance of the Board the matter was adjourned and the Electricity Board filed an affidavit giving a fresh offer showing the manner in which the Board now intends to fill-up the posts of Accounts Supervisors, as quoted hereunder :- "2. I state that the appellants have filed a Writ Appeal against the common order of the learned Judge dated 19.12.2007 passed in W.P. 10055/2006 directing the appellants herein to promote 677 Accounts Assistants to the post of Accounts Supervisor before 25.12.2007. 3. I state that during the hearing of the above Writ Appeal and connected appeals, certain suggestions were made. The competent authority carefully considered the suggestions proposed and accordingly had taken a decision to implement the following, pending settlement talks to be completed shortly. a) The appellants will promote 500 qualified Accounts Assistants to the post of Accounts Supervisor from the panel dated 26.12.2006 published by the Chief Engineer (Personnel) in his Memo No.019774/67/G29/G292/2006-8 within a period of 15 days. On such promotion, consequential individual https://hcservices.ecourts.gov.in/hcservices/ orders of posting will be issued separately. The employees so promoted should work at places wherever their services are required and orders of posting issued. b) With regard to remaining 177 Assistant Accounts in the panel published on 26.12.2006, the appellants will decide actual need of Accounts Supervisors as on 1.12.2007 taking into consideration the computerisation as made by 1.12.2007. c) On such determination, if there is further need of Accounts Supervisors, those posts will be filled up from the remaining 177 eligible employees whose names are appearing in the panel published on 26.12.2006. d) After exhausting the panel dated 26.12.2006 and after taking into consideration the computerisation, if further need exist as on 1.12.2007 the subsequently qualified Accounts Assistants will be considered for promotion as Accounts Supervisors. If the appellant Board finds that further post of Accounts Supervisors required to be filled up on the basis of such need and strength, the same would be determined and the Accounts Assistants who are hitherto performing similar duties might be upgraded as Accounts Supervisors as per such need on the basis of seniority-cum-fitness/service records. 4. In the above circumstances, the appellants respectfully pray that this Hon'ble Court may be pleased to set aside the common order passed in W.P. No.10055/2006 and etc., under appeal and pass orders suitably as this Hon'ble Court may deem fit and proper in the circumstances of the case and thus render justice." 12. The aforesaid offer as made on behalf of the Electricity Board has been accepted in its totality by Mr. V.Prakash, learned senior counsel appearing on behalf of 1st respondent in W.A. No.1613/07, Tamil Nadu Electricity Employees Congress. Mr. N.G.R.Prasad, learned counsel appeared on behalf of Tamil Nadu Electricity Workers Federation, 4th respondent, in W.A. No.179/08 and Mr.Balan Haridoss, learned counsel appeared for 3rdrespondent, A.L.Suresh Babu and 5th respondent, Tamil Nadu Minkalazhaka Thozhilalar Munnetra Sangam, in W.A. No.1613/07. Both of them, while made no objection in regard to offer given by Electricity Board at clause (a), (b) and (c), quoted above, raised objection against clause (d), which stipulates upgradation of Accounts Assistants as per need on the basis of seniority- cum-fitness/service record only after the promotion of rest Accounts Assistants, who have passed Accountancy – Lower Grade Examination. It was 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 the Accounts Assistants, who have not been empanelled, even on the basis of their respective qualification. They placed reliance on settlement dated 15th Oct., 2005, (S.No.2, Part-II), wherein it was agreed upon that the work of Accounts Assistants will be performed by Accounts Supervisors with higher norms of 4400 effective service per head. It was submitted that in view of such stipulation, for upgradation of rest of the Accounts Assistants, the qualification of passing any examination does not arise as no such criteria prescribed for upgradation of post with incumbent as Accounts Supervisor. The eligibility criteria as prescribed under Regulation 96 relates to direct recruitment and promotion and not applicable for upgradation of post of Accounts Assistant with incumbent as Accounts Supervisor. As appointment could be made from different sources for which separate criteria has been laid down, the eligibility criteria fixed for appointment through a particular source cannot be made applicable for appointment through another source, in absence of any rule or guideline issued to such effect. For example, no criteria to pass any requisite departmental examination has been prescribed for direct recruitment to the post of Accounts Supervisor, but such criteria has been laid down under Rule 96 (1) (b) for promotion to same very post. Similarly, no criteria having laid down for upgradation to the post of Accounts Assistant with incumbent to the higher post of Accounts Supervisor, such criteria of upgradation is now being laid down in settlement dated 15th Oct., 2005, the Electricity Board cannot differentiate amongst the rest of the Accounts Assistants on the ground that one has passed certain test and another has not passed such test. 13. Mr. Radhakrishnan, learned senior counsel for the Electricity Board submitted that if certain Associations/Federations/Unions are not agreeable to