High Court of Madras
Case Law Search
The Tamilnadu Electricity v. Bharathiya Electricity Employees - Writ Appeal No.520 of 2005  RD-TN 277 (7 April 2005)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
C O R A M
The Hon'ble Mr. MARKANDEY KATJU, Chief Justice and
The Hon'ble Mrs. Justice PRABHA SRIDEVAN
Writ Appeal No.520 of 2005
W.A.M.P.No.964 of 2005
1. The Tamilnadu Electricity
Board, rep. by its
2. The Chief Engineer (Personnel),
Tamilnadu Electricity Board,
Chennai-2. ... Appellants -Vs-
Bharathiya Electricity Employees
rep. by its General Secretary,
No.5/38-V, Arumugam Nagar,
Salem-16. ... Respondent Prayer : Writ Appeal under Clause 15 of the Letters Patent as against the order dated 18.01.2005 passed in Writ Petition No.34556 of 2004. - - - - -
For Appellants : Mr. V. Radhakrishnan
For Respondent : Mr. V. Prakash,
Senior Counsel for
Mr. P. Chandrasekaran
:J U D G M E N T
PRABHA SRIDEVAN, J.
The respondent-writ petitioner, is the Federation of the Employees of the Tamil Nadu Electricity Board. On 16.10.2004, the second appellant, by Letter No.81288/875/G.56/G.561/2004-1, called for applications from willing employees in the categories of Junior Assistant/ Administration and Junior Assistant/Accounts for appointment by transfer to the post of Junior Auditor. The requisite qualification was possession of a Bachelor's Degree viz., B.A./B.Sc./B.Com.
2. The method of recruitment to the post of Junior Auditor is governed by Regulation No.94 of the Tamil Nadu Electricity Board Service Regulations. It is as follows :-
a) By direct recruitment;
b) Appointment from -
i)Junior Assistants in the Board Office Administration Branch, Accounts Branch, Technical Branch, and other Subordinate Offices (or) ii) Appointments from Typists including Steno-Typists (or) iii) Appointments from Assessors in Circle Offices. According to the respondent, the appellants have violated Articles 14 and 16 of the Constitution of India by drawing candidates for selection to the post of Junior Auditors, from one category alone, viz. Junior Assistant (Administration) and (Accounts) and excluding Typists and Assessors.
3. The learned single Judge by his judgment dated 18.01.2005 rejected the contention that the Board was entitled to prefer one category of employees out of the four categories from which persons could be appointed by transfer. Learned single Judge also rejected the contention that the appellants were entitled to restrict the scope of appointment to one category alone since there were a number of vacancies in the post of Assessors and Typists. Above all, it was held that when the appointment to the post of Junior Auditors is made by selection, it was necessarily on consideration of merits and therefore, there cannot be discrimination amongst the three categories mentioned in Clause (b) of Regulation 94. Against this order, the present writ appeal has been preferred.
4. The learned counsel for the parties submitted their written submissions and also advanced oral arguments.
5. Before dealing with these submissions we would like to quote paragraphs 8 and 9 of the counter affidavit in the writ petition which state:- "Para-8: While considering the appointment from other categories it was found that in the category of Typists including Steno-Typists, there are more than 250 vacancies exist. Hence, the incumbents in this category could not be transferred. Equally appointment from Assessors from Circle Office was also considered to be not possible because there are 170 vacancies in the post of Assessors. In the event of transfer, Typists, Steno-Typists, and Assessors vacancies cannot be filled up as there is a ban in the recruitment of initial level categories besides there are vacancies in these two categories. Therefore, it was found that transfers from these two categories was absolutely not feasible in the interest of administration. In so far as Junior Assistants/Administration, some of the posts have been suppressed and it was found possible that some eligible and willing Junior Assistants/ Administration and Accounts could be transferred to fill up the post of Junior Auditors. At this stage, it is relevant to point out that the scale of pay for the posts of Junior Auditor and Junior Assistants and Assessors are one and the same.
Para:9 In those circumstances, the 2nd respondent issued the impugned Call Letter dated 16.10.2004 calling upon the Superintending Engineers of all Circles to furnish the list of willing Junior Assistants/ Administration and Accounts, who possess the requisite degree qualification for appointment to the post of Junior Auditor by transfer method. The respondents respectfully submit that the propsoed action of the respondents is only filling up of the posts by transfer method and not recruitment by internal selection, as contended by the petitioner. The petitioner Union on a misconception of the facts had assumed that it is under recruitment and thereby the impugned letter excludes the Assessors for being selected to the post of Junior Auditors. By the impugned process of filling the post of Junior Auditors by transfer, the promotional prospects of any employee is not deprived of and only the willing, and qualified Junior Assistants/Administration and Accounts have been given an option to relinquish his/her right for promotion in the present post held in the event of appointment as Junior Auditors."
6. According to the learned counsel for the appellants, the posts of Junior Auditors, Junior Assistants, Typists and Assessors, all carry an equal pay scale of Rs.3370-100-5770. Since a ban was imposed on direct recruitment, the appellants had to necessarily resort to the alternative method provided for in Clause (b) of Regulation 94 of the Service Regulations. Learned counsel contended that the action proposed by the appellants was only to make appointments by transfer and not by promotion or internal selection. Hence, there was no question of discrimination. It is specifically stated in paragraph - 9 of the counter affidavit in the writ petition that there is no promotion or appointment by internal selection made in this method of recruitment by transfer to the post of Junior Auditor. Learned counsel for the appellants also submitted that when administrative exigencies require the exclusion of two categories for the purpose of appointment, the Court should not interfere. As alleged in paragraph 8 of the counter affidavit (quoted above), more than 250 vacancies exist in the category of Typists and Steno-typists and 170 vacancies in the category of Assessors. Therefore, the administration would suffer if persons are transferred from these two categories to the post of Junior Auditors. Equally, because of surplus staff on the post of Junior Assistants, some of the posts had to be suppressed (abolished) and therefore, eligible and willing Junior Assistants could be easily transferred to fill up the post of Junior Auditors. It is stated by the appellants in their counter affidavit that by this process of filling up the post of Junior Assistants by transfer, 'promotional prospects of any employee are not deprived, and only the willing and qualified Junior Assistants/Administration and Accounts have been given an option to relinquish his/her right for promotion in the present post held in the event of their appointment as Junior Auditors'.
7. Regulation 94 of the Tamil Nadu Electricity Board Service Regulations provides that 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. We have already seen that appointment to the post of Junior Auditors could be either by direct recruitment or appointment from the three categories mentioned therein. The Note to Regulation 94 reads thus :-
"Note : The seniority of a person in the category of Junior Auditor appointed from the category of typist or steno-typist shall be determined from the date of his regular appointment as Junior Auditor. In the case of persons directly recruited or transferred from other branches of the Board Office, the seniority shall be determined, unless otherwise specifically ordered from the date of joining duty".
It is also seen from the same that for the post of Auditors, appointment could be by way of promotion from Junior Auditors or direct recruitment or promotion from Assistants in the office of the Administrative Branch or Technical Branch or promotion from Typists or Stenotypists.
8. In (2003) 2 SCC 632 (P.U. Joshi v. Accountant General), the Supreme Court had an occasion to consider the scope of judicial review with regard to the determination of conditions of service, constitution, classification or abolition of posts, etc., wherein it was held as follows :- "We have carefully considered the submissions made on behalf of both parties. Questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation, abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertaining to the field of policy are within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India and it is not for the statutory tribunals, at any rate, to direct the Government to have a particular method of recruitment or eligibility criteria or avenues of promotion or impose itself by substituting its views for that of the State. Similarly, it is well open and within the competency of the State to change the rules relating to a service and alter or amend and vary by addition/subtraction the qualifications, eligibility criteria and other conditions of service including avenues of promotion, from time to time, as administrative exigencies may need or necessitate. Likewise, the State by appropriate rules is entitled to amalgamate departments or bifurcate departments into more and constitute different categories of posts or cadres by undertaking further classification, bifurcation or amalgamation as well as reconstitute and restructure the pattern and cadres/categories of service, as may be required from time to time by abolishing the existing cadres/posts, and creating new cadres/posts. There is no right in any employee of the State to claim that rules governing conditions of his service should forever be the same as the one when he entered service for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time, a government servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relating to even an existing service."
9. In the present case, the appellants have categorically stated that the promotional prospects of the employees are not deprived, and qualified Junior Assistants/Administration and Accounts who have been given an option to relinquish their right for promotion to the present post are appointed as Junior Auditors in the three categories from which persons are appointed by transfer as Junior Auditors and the post of Junior Auditors all carry the same scale of pay. The appellants have also stated that the administration would suffer if Junior Auditors are recruited from the category of Typists or Assessors since there are already vacancies in those posts and these vacancies cannot be filled up since there is a ban on the recruitment at the initial level in these two categories. Therefore, in the interest of administration, it was found that transfers from those categories were not advisable and feasible. In addition, some Junior Assistants were in excess to the posts and some of the posts had to be abolished and therefore, the administration felt that some of the eligible and willing Junior Assistants could be transferred. The sanctioned strength of the Junior Assistants is 31 and there are 23 vacancies.
10. On a review of the internal audit and internal control system in the Board Audit Branch, it was pointed out that the Audit Branch of the Board had to be strengthened by filling up the posts of Auditors, Junior Assistants and Typists. The posts of Junior Assistants could not be filled up by direct recruitment because of the ban. The appellants, therefore, had no option but to fill up the vacancies by transfer. In addition, the three categories from which the posts of Junior Auditors are filled up are connected by the word 'or' which, in the normal course of understanding, must be held to be disjunctive - vide AIR 1980 SC 360 (Delhi Municipality vs. Tekchand), AIR 1980 SC 21 81 (L.I.C. of India vs. D.J. Bahadur) and AIR 1992 SC 2188 (State of Punjab vs. Ram Singh). Therefore, it was open to the appellants to choose persons from one category or the other.
11. Before dealing with the question whether it was open to the appellants to have decided to appoint Junior Auditors by transfer only from the posts of Junior Assistants and not from the posts of Typists and Assessors, it is necessary to first deal with the legal position regarding judicial review of administrative decisions.
12. In Tata Cellular Vs. Union of India, AIR 1996 SC 11 the Supreme Court dealt with this question in great detail and held:- (1) The modern trend points to judicial restraint in administrative action;
(2) The Court does not sit as a court of appeal but merely reviews the manner in which the decision was made;
(3)The Court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible.
The above principles have been laid down by the Supreme Court in Tata Cellular Case (supra) after an exhaustive consideration of the case law and the other authorities on the subject. This decision has been followed in Delhi Development Authority Vs. M/s.UEE Electrical Engg. (P) Ltd., AIR 2004 SC 2100 (vide paragraphs 11 to 15).
13. In G.B.Mahajan and Others Vs. The Jalgaon Municipal Council and Others, AIR 1991 SC 1153 (vide paragraph - 14) the Supreme Court quoted the following remarks of Sir Gerard Brennan in "Judicial Review of Administrative Action in the 1980s":-
"The Courts are kept out of the lush field of administrative policy, except when the policy is inconsistent with the express or implied provisions of a statute....or when a decision made in purported exercise of a power is such that a repository of the power, acting reasonably and in good faith, could not have made it. In the latter case, ' something overwhelming' must appear before the Court will intervene ( emphasis supplied)".
14. In Premium Granites and Another Vs. State of Tamil Nadu and others, AIR 1994 SC 2233 (vide paragraph - 52)the Supreme Court observed:- "It is not the domain of the Court to embark upon unchartered ocean of public policy in an exercise to consider as to whether a particular public policy is wise or a better public policy can be evolved. Such exercise must be left to the discretion of the executive and legislative authorities as the case may be. The Court is called upon to consider the validity of a public policy only when a challenge is made that such policy decision infringes fundamental rights guaranteed by the Constitution of India or any other statutory right."
15. As regards the claim of the writ petitioners that the policy of the appellant-Board violates the legitimate expectation of the Assessors and Typists, this contention is negatived by the decision of the Supreme Court in Union of India Vs. International Trading Company, JT 2003 (4) SC 549 (vide paragraphs - 20 and 21), wherein it was observed that the change in policy can defeat a substantive legitimate expectation if it can be justified on "Wednesbury reasonableness". The decision maker has the choice in the balancing of the pros and cons relevant to the change in policy. Therefore, it is clear that the choice of policy is for the decision maker and not the Court. The legitimate substantive expectation merely permits the Court to find out if the change of policy which is the cause for defeating the legitimate expectation is irrational or perverse or one which no reasonable person could have made. In the present case, in our opinion, the policy laid down by the letter dated 16.10.2004 was not so irrational or perverse that no reasonable person could have made it. Hence, in our opinion, the said policy is not arbitrary or illegal as per the standards laid down by the aforesaid decision of the Supreme Court.
16. In Federation of Railway Officers' Association and Others Vs. Union of India, (2003) 4 SCC 289 the Supreme Court observed that the Court should not interfere with the matters affecting policy, but should leave such matters for decision to those qualified to address the issues. A policy or action of the Government, unless inconsistent with the Constitution and the laws or arbitrary or irrational or abuse of power, was not subject to judicial review.
17. In State of Punjab and Others Vs. Ram Lubhaya Bagga and Others, (1998) 4 SCC 117 the Supreme Court observed that the State had a right to change its policy from time to time under the changing circumstances. The wisdom of the policy cannot be judicially scrutinised though the Court can consider whether the policy is arbitrary or violative of law. In our opinion, the policy laid down by the latter of the appellant-Board dated 16.10.2004 cannot be said to be arbitrary or illegal for the reasons mentioned above.
18. In the present case, evidently a policy decision has been taken by the appellant-Board that the post of Junior Auditor will be filled in by transfer only from the Junior Assistants and not from the Typists and Assessors. The reason for this policy decision was that there were already 250 vacancies in the posts of Typists and 170 vacancies in the post of Assessors. Hence, the transfer from these posts to the post of Junior Auditor would mean further depletion of the already depleted strength of Typists and Assessors. We cannot say that this is an arbitrary or unreasonable decision. After all it is for the appellant-Board to manage the administration, and as long as they do not act in a totally arbitrary manner, it is not proper for this Court to interfere. As observed by a Division Bench of this Court in Rama Muthuramalingam Vs. Deputy Superintendent of Police, Mannargudi, AIR 200 5 Madras 1, this Court must exercise judicial restraint,and not ordinarily interfere with legislative or executive decisions. The decision taken by the appellant-Board was an administrative decision, and it is ordinarily not proper for this Court to interfere in administrative decisions except on Wednesbury principles.(See Associated Provincial Picture Houses Ltd. Vs. Wednesbury Corporation, 1948 1 K.B. 223 and Union of India Vs. G.Ganayutham, AIR 1997 SC 3387 vide paragraphs 1 0 and 28). In our opinion, the Wednesbury principle does not apply in the present case, for the reasons mentioned above. Moreover, when some Junior Assistants are in excess of the required strength, and some posts of Junior Assistants have to be abolished, there was nothing arbitrary in the administrative decision of the appellant-Board to shift some of them to the post of Junior Auditor. These are all administrative and policy matters and as pointed out by the Supreme Court in Tata Cellular Case (supra) the modern trend is towards judicial restraint in administrative matters. In the present case, the appellantBoard has taken an administrative decision to fill the post of Junior Auditor only from the Junior Assistants. That was a policy decision taken on a relevant consideration, already mentioned above, namely, that there were vacancies on the posts of Typists and Assessors, and there was excess strength of Junior Assistants. This Court cannot sit in appeal over such an administrative decision.
19. We may mention that it is well settled that the Court should not interfere with an administrative or policy decision merely because it is of the view that a better decision could have been taken by the executive. As observed by the Supreme Court in Haryana Financial Corporation Vs. M/s.Jagadamba Oil Mills, AIR 2002 SC 834 (vide paragraph - 10) "In the matter of administrative action, it is well known that more than one choice is available to the administrative authorities. They have a certain amount of discretion available to them. They have 'a right to choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred'. (per Lord Diplock in Secretary of State for Education and Science Vs. Metropolitan Borough Council of Tameside, 1977 AC 1014). The Court cannot substitute its judgment for the judgment of administrative authorities in such cases. Only when the action of the administrative authority is so unfair or unreasonable that no reasonable person would have taken that action, the Court can intervene."
20. Thus, the Court should not interfere with the policy or administrative decision merely because it is of the view that a better view could been taken by the executive. It is only where the decision is shockingly arbitrary in the sense that no reasonable person could possibly have taken such a decision, then the Court can interfere. Within the parameters of the law the administration has a large number of options and choices, and as long as the law is not broken and the decision is not shockingly arbitrary, the Court should not interfere with the decision taken by the executive.
21. In the present case, it may be that the appellant could have taken some other decision which the Court feels would have been a better decision, but on that ground the Court cannot over turn the decision as it cannot be said to be so absurd that no sensible person could possibly have taken such a decision.
22. We may further mention that even assuming that the promotional aspects of the Typists and Assessors will be affected that alone cannot be a ground for our interference with the policy decision of the appellants which has been taken, as mentioned above, on relevant considerations. It often happens that policy or administrative decisions cause hardship to some people, but on that ground the said decision cannot be set aside, otherwise, almost all administrative and policy decisions will have to be set aside. The Court must exercise restraint and give some elbow room and free play to the administration, otherwise, it may well nigh become difficult to run the administration.
23. In these circumstances, the decision of the appellants cannot be interfered with. Hence, the impugned order of the learned single Judge cannot be sustained and is therefore set aside. The writ appeal is allowed. Consequently, connected W.A.M.P. is closed. No costs. gs.
1. The Chairman,
Tamilnadu Electricity Board,
2. The Chief Engineer (Personnel),
Tamilnadu Electricity Board,
Double Click on any word for its dictionary meaning or to get reference material on it.