Madras High Court
S.Periyasamy vs The Chairman Cum Managing Director on 22 September, 2020
Author: Senthilkumar Ramamoorthy
Bench: A.P.Sahi, Senthilkumar Ramamoorthy
W.P.No.9328 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.09.2020
CORAM :
The Hon'ble Mr.A.P.SAHI, THE CHIEF JUSTICE
AND
The Hon'ble Mr.JUSTICE SENTHILKUMAR RAMAMOORTHY
W.P.No.9328 of 2020
and W.M.P.Nos.11406 to 11409 of 2020
S.Periyasamy .... Petitioner
-vs-
1.The Chairman cum Managing Director,
Tamil Nadu Generation and Distribution
Corporation Limited, No.144,
Anna Salai, Chennai 600 002.
2.The Chief Engineer/Personnel,
Tamil Nadu Generation and Distribution
Corporation Limited, No.144,
Anna Salai, Chennai 600 002.
3.The Superintending Engineer,
Thiruvannamalai Electricity Distribution
Circle, Thiruvannamalai – 606 604. .... Respondents
Petition filed under Article 226 of the Constitution of India
praying for issue of Writ of Certiorarified Mandamus to call for the
entire records connected with the impugned proceedings passed by
the 1st respondent in (PER) FB TANGEDCO Proceedings No.18
(Secretariat Branch) dated 02.06.2020, and quash the same in so far
as amending Regulation 98(1)(bb) of the Tamil Nadu Electricity Board
http://www.judis.nic.in
Page 1 of 42
W.P.No.9328 of 2020
Service Regulations by prescribing a minimum number of years of
service to be rendered by the officials in certain feeder categories to
become eligible for their first two promotions is concerned, and
consequentially direct the respondents to promote the petitioner from
the post of Junior Assistant (Accounts) to the post of Assistant
(Accounts) based on the letter of the 2nd respondent vide Letter
No.018773/329/G.29/G.291/2018-1 dated 08.03.2019, with all
consequential benefits.
For Petitioner : Mr.S.N.Ravichandran
For Respondents : Mr.Karthik Rajan
ORDER
(Order of the Court was made by The Hon'ble Chief Justice) This writ petition raises a challenge to the validity of Regulation 98(1)(bb) of the Tamil Nadu Electricity Board Service Regulations, which prescribes the minimum number of years of service to be rendered in the feeder category of Junior Assistant (Accounts) for being promoted to the post of Assistant (Accounts).
2.It is the case of the petitioner that according to the regulations which were existing prior to the amendment, which did not have the http://www.judis.nic.in Page 2 of 42 W.P.No.9328 of 2020 above restriction clause, a suitability list was called for on 08.03.2019 for promotion to the post of 523 Assistant (Accounts). A suitability list was accordingly prepared in which the name of the petitioner figured.
Two employees filed a writ petition before this Court questioning the seniority that was prepared in W.P.No.18664 of 2019, where an interim order was passed on 19.08.2019 in W.M.P.No.18014 of 2019.
A stay vacate application was filed and after hearing the parties, the following order was passed on 18.03.2020:-
“When the matter is taken up for hearing today, Mr.Anand Gopalan, the learned counsel appearing for the TANGEDGO, would submit that the interim injunction restraining the TANGEDGO from proceeding with the promotion to the post of Assistant without publishing the seniority list of Junior Assistant/Accountants regarding the selection conducted pursuant to Notification No.02/2016, dated 29.02.2016, is causing extreme hardship, since the entire promotion exercise has been stalled by two the petitioners herein.
2.Shri.S.N.Ravichandran, the learned counsel appearing for the private respondent, viz., R4, would also submit that in view of the injunction operating, the 4 th respondent was not considered for promotion. On behalf of the impleaded 4 th respondent, a vacate stay petition has also been filed in W.M.P.No.5018 of 2020.
3.However, the learned counsel appearing for the TANGEDCO would submit that the present promotion exercise would also include the promotion of the petitioners herein along with other private respondents.
The said submission has been made, on instructions, from http://www.judis.nic.in Page 3 of 42 W.P.No.9328 of 2020 his client.
4.In view of the above submission made by the learned counsel for the TANGEDGO that in the promotion exercise, the petitioners would also be considered for promotion along with other eligible persons, the interim order of injunction already granted by this Court in W.M.P.No.18014 of 2019, dated 19.08.2019 need not be extended, as the interest of the petitioners is duly protected pending disposal of the writ petition.
5.As far as the list as to how the seniority has to be drawn, whether application of Regulation 97 of the Tamil Nadu Electricity Board Service Regulations should be invoked or not would be considered at the time of disposal of the writ petition finally.
6.In view of the above narrative, this Court is of the view that the interim injunction granted on the above date, viz., 19.08.2019, in W.M.P.No.18014 of 2019, is to be vacated and the same is vacated forthwith. The promotion of employees, which is related to the subject matter of the writ petition will be subject to the result of the writ petition.
Post the writ petition for final hearing on 09.04.2020.”
3.The respondent Corporation instead of proceeding with the promotions as per the suitability list already prepared, inserted the impugned clause 98(1)(bb) in the Regulations vide proceedings No.18, dated 02.06.2020. The same is extracted hereinunder:-
PROCEEDINGS:
The vacancies In various feeder categories are being filled up by "Direct Recruitment"/"Internal Selection" and under "Compassionate grounds". The candidates appointed to the posts http://www.judis.nic.in Page 4 of 42 W.P.No.9328 of 2020 In the said categories, are considered for promotion to next higher level on successful completion of probation and fulfillment of other eligibility criteria, such as passing of departmental tests, etc. In Tamil Nadu Electricity Board Service Regulations, the method of appointment for every cadre and the qualifications, age, eligibility criteria have respectively been prescribed for promotion to the next level. But, the minimum number of years to be served by the employees in certain initial level feeder categories, to become eligible for the first and second promotions, has not been prescribed in the said regulations. For certain other categories such as Tester (Chemical) and Technical Assistant, lesser number of years of service alone viz. two years, has been prescribed for promotion. Due to the above reason, the candidates who have joined In TANGEDCO's service are promoted to the next higher post within a short period. Likewise, certain employees who have got their first promotion, are promoted to the third level immediately after getting their first promotion. In view of the above, the employees shall not have enough opportunity to learn the rules/regulations and basic fundamentals of TANGEDCO. In order to avoid such instances in future and to ensure proper proficiency in the relevant subject, it was felt that necessary amendments may be issued to Tamil Nadu Electricity Board. Service Regulations, prescribing a minimum of 3 years for the first two promotions in respect of the following posts:-
For promotion from the initial level post:
i. From Junior Assistant/Typist/Steno Typist to Assistant/Assistant Section Officer, as the case may be; ii. From Junior Auditor to Assistant;
iii. Assistant Draughtsman to Draughtsman;
iv. Tester (Chemical) to Junior Chemist; and v. Technical Assistant to Junior Engineer II Grade. http://www.judis.nic.in Page 5 of 42 W.P.No.9328 of 2020 For second promotion, i.e, to the third level: i. From Assistant/Assistant Section Officer to Superintendent / Accounts Supervisor/Administrative Supervisor/Section Officer, as the case may be;
ii. Auditor to Assistant Audit Officer;
iii. Draughtsman to Senior Draughtsman; and iv. Junior Engineer II Grade to Junior Engineer I Grade. As a service period of 10 years has already been prescribed (in TNEB Service Regulations) for a Junior Chemist to become eligible for promotion to the post of Senior Chemist, the said post has not been incorporated in the said proposal. Hence, a proposal for making of amendments to TNEB Service Regulations, has been placed before the Board of TANGEDCO and after careful consideration, the Board of TANGEDCO has approved the same.
2.Accordingly, in exercise of the powers conferred by Section 79(c) of the Electricity (Supply) Act, 1948 (Central Act 54 of 1948), read with Section 185 of the Electricity (Supply) Act, 2003 and G.O.Ms.No.100, Energy (B2) Department, dated 19.10.2010, the Tamil Nadu Generation and Distribution Corporation Limited (formerly Tamil Nadu Electricity Board) makes the following amendments to regulation 91(3) of the Tamil Nadu Electricity Board Service Regulations:-
AMENDMENTS In the said Regulations, I. after clause (b) under sub-regulation (1) under regulation 98, the following expressions shall be added, namely:
"(bb) No employee belonging to the following posts shall be eligible for first promotion and subsequently to the second promotion, unless he/she has put in a minimum service period of three years in the initial level post and in the second level post respectively:
http://www.judis.nic.in Page 6 of 42 W.P.No.9328 of 2020 II. in Annexure III (referred to in regulation 94) Junior Engineer Appointment Must have rendered (Electrical) I Grade by service as Junior promotion Engineer (Electrical) II Grade for a period of not less than three years.
i. in between “Assistant Engineer (Electrical)” and “Junior Engineer (Electrical) II Grade” in Column (1) and its corresponding expressions in Columns (2) and (3) respectively, the following expressions shall be inserted:
Junior Engineer Appointment Must have rendered (Mechanical) I by service as Junior Grade promotion Engineer (Mechanical) II Grade for a period of not less than three years.
ii. In between “Assistant Press Superintendent” and “Junior Engineer (Mechanical) II Grade” in Column (1) and its corresponding expressions in Columns (2) and (3) respectively, the following expressions shall be inserted: iii. for the expression "two years" occurring in column (3) against the expression "Junior Chemist" in column (1), the expression "three years" shall be substituted. iv. for the expression "2 years" occurring in column (3) against the expression "Junior Engineer (Electrical) Grade" in column (1), the expression "three years" shall be substituted.
v. for the the expression "two years" occurring in column (3) against expression "Junior Engineer (Mechanical) II Grade" in column (1), the expression "three years" shall be substituted.
The receipt of these proceedings shall be acknowledged.” http://www.judis.nic.in Page 7 of 42 W.P.No.9328 of 2020
4.Learned counsel for the petitioner, Mr.Ravichandran, has made the following submissions:-
I. Firstly, such a change of service condition is in violation of Section 9A of the Industrial Disputes Act, 1947, as it alters the service condition without putting the employees to notice, who are entitled to the benefits of the aforesaid provision of the Industrial Disputes Act, 1947. He has relied on the judgment of Division Bench of this Court in Spencer Group Aerated Water Factory Employees Union vs The Presiding Officer, 1996 WLR 513 (DB).
II. After the suitability list had been called for and the name of the petitioner had been included, then the respondent Corporation was bound to carry out the promise made and undertaking given before this Court on 18.03.2020 in the order referred to herein above in W.P. No.18664 of 2019.
III.No retrospective effect can be given to the amended rule inasmuch as rights had crystallised in favour of the petitioner and other similarly situate persons keeping in view the Board Proceedings No.212, dated 12.06.1987, which mandate the preparation of promotion panels under a time schedule by 20 th http://www.judis.nic.in Page 8 of 42 W.P.No.9328 of 2020 March each year. In the instant case, the suitability list had already been prepared under the list dated 08.03.2019 and therefore, the respondent Corporation was bound to implement the promotion from the said panel of suitable candidates, the validity whereof is preserved for a year.
IV.The action of the respondent Corporation in divesting the petitioner of his right to be promoted is in violation of law, for which he has relied on the judgment of the Apex Court in the case of Y.V.Rangaiah vs. J.Sreenivasa Rao, (1983) 3 SCC 284. V. The Board Proceedings No.212, dated 12.06.1987 have the force of law and he has relied on paragraph 9 of the judgment of a learned single Judge of this Court in the case of The Chief Engineer/Personnel vs The Presiding Officer and Another (W.P.No.7171 of 2000) decided on 18.12.2009. He has also urged that the cut-off date mentioned in the Board Proceedings No.212 have to be applied for which he has also relied on paragraph 7 of the judgment of another learned single Judge of this Court in the case of J.P.Rajasekara Kumaragurubaran vs. The Superintending Engineer and Others (W.P. (MD) No.7296 of 2007) decided on 03.09.2007.
http://www.judis.nic.in Page 9 of 42 W.P.No.9328 of 2020
5.Mr.Ravichandran has then urged that when the Government of Tamil Nadu took a policy decision to trifurcate the erstwhile Tamil Nadu Electricity Board into three branches of Generation, Distribution and Transition, the same was challenged in W.P.No.24641 of 2010, where the Electricity Board gave an undertaking that stands recorded in the order dated 27.1.2011 that the service conditions of the employees shall not be altered unless the transition is complete. He contends that the said order has also been violated by introducing the amendment.
6.The basic argument, therefore, is that since the vacancy had occurred long back and the petitioner was qualified on the date when the vacancy was available, then the vacancy has to be filled up by applying the rules which were existing as on the date of suitability list i.e., 08.03.2019, and the claim of the petitioner for being promoted cannot be denied by introducing an amendment in the rule subsequently which violates Article 14 of the Constitution of India.
The contention is that an amendment cannot be applied retrospectively so as to defeat the right of promotion that had accrued earlier.
http://www.judis.nic.in Page 10 of 42 W.P.No.9328 of 2020
7.Mr.Ravichandran has also forwarded the Electricity Board Memo dated 30.01.2019 issued by the Secretary under the orders of the Chairman reiterating the Board Proceedings No.212, dated 12.06.1987.
8.Replying to the aforesaid submissions, Mr.Karthik Rajan, urged that by merely calling for a suitability list, no right is vested in the petitioner to claim promotion and even otherwise, promotion is not a fundamental right. He, further, submits that the Industrial Disputes Act, 1947, would not apply as there are service regulations in force, which clearly govern the field and the power to amend the regulation is very much available. He has invited the attention of the Court to Clause 5 of the Tamil Nadu Electricity Board Service Regulations that has been relied on by the learned counsel for the petitioner himself that the Board can always delegate its powers under the regulations.
He submits that the amended regulations have been framed in exercise of the powers conferred by Section 79(c) of the Electricity (Supply) Act, 1948, read with Section 185 of the Electricity (Supply) Act, 2003 and G.O.Ms.No.100, Energy (B2) Department, 1910.2010.
The regulations, therefore, having been amended in exercise of such powers, there is no lack of competence in the Corporation to have exercised this power accordingly.
http://www.judis.nic.in Page 11 of 42 W.P.No.9328 of 2020
9.He, then, submits that the right of promotion can accrue only if an employee is considered and the candidature is accepted or otherwise rejected for the purpose of raising a challenge before this Court. He submits that mere preparation of a suitability list does not confer a right inasmuch as it is settled law even otherwise that a mere participation in the selection process by itself does not get converted into a crystallised right unless the process is completed in accordance with the rules. It is urged that the action of the Corporation is neither arbitrary nor illegal and to the contrary, the amendment had to be brought about in order to have persons of experience to be promoted on a higher post in an uniform manner. The impugned regulation, therefore, sets in a system of equality of consideration for a definite purpose to be achieved, namely, to have a minimum qualified person to be considered for promotion.
10.It is contended that it is the right of the employer to prescribe eligibility conditions keeping in view the nature of the post and therefore, providing for minimum years of service through the impugned regulation is only to introduce a level of capacity coupled with experience for being considered for promotion that cannot be termed as either unreasonable or arbitrary.
http://www.judis.nic.in Page 12 of 42 W.P.No.9328 of 2020
11.To substantiate his submissions, he has relied on the following decisions:-
i. Union of India vs. S.L.Abbas, (1993) 4 SCC 357; ii. State of Jammu and Kashmir vs. Shiv Ram Sharma and Others, (1999) 3 SCC 653;
iii. Chief Commercial Manager, South Central Railway vs. G.Ratnam, (2007) 8 SCC 212;
iv. Rajasthan State Sports Council vs Uma Dadhich, (2019) 4 SCC 316;
v. State of Orissa vs. Dhirendra Sundar Das, (2019) 6 SCC 270; and vi. The judgment of a learned single Judge in the case of M.Sethupathy vs. The Chairman cum Managing Director, TNEB, Chennai, (W.P. (MD) No.8300 of 2020), decided on 30.07.2020.
12.We have considered the submissions raised and the first legal proposition that deserves to be clarified is that which arises out of the judgment of the Apex Court in the case of Y.V.Rangaiah (supra).
13.In order to appreciate the same, we may point out that Rule 4(a)(1)(i) of the Andhra Pradesh Registration and Subordinate Service Rules were under consideration in the said case, which required that the list of approved candidates for appointment by transfer shall be prepared in the month of September every year so as to be in force http://www.judis.nic.in Page 13 of 42 W.P.No.9328 of 2020 until the list of approved candidates for the succeeding year is prepared, and shall contain such number of candidates as is approximately equal to the number of vacancies expected to arise during the currency of the list. Thus, the preparation of the list as against the vacancies and the manner has to be appreciated in order to understand the ratio of the said judgment. The extract of paragraph 2 of the said judgment is reproduced hereinunder for better appreciation of the controversy therein:-
“2. .. Rule 4(a)(1)(i) of the Andhra Pradesh Registration and Subordinate Service Rules, lays down that all first appointments to a service, State or subordinate, and all promotions in a service otherwise than in accordance with clause (ii) of sub-rule (b) of Rule 34 shall be made by the appointing authority or the authority specified in sub-rule (c), as the case may be, from a list of the approved candidates. The rule further provides that such list shall be prepared in the prescribed manner by the appointing authority or any other authority empowered in the special rules in that behalf. The rule further requires that the list of approved candidates for appointment by transfer, where the Public Service Commission is not consulted on the suitability of a candidate, shall be prepared in the month of September every year so as to be in force until the list of approved candidates for the succeeding year is prepared and for the purpose of preparing the said list the claims of as many eligible candidates as such authority considers necessary shall be considered. This rule further enjoins that the list of approved candidates shall contain such number of candidates as is approximately equal to the number of vacancies expected to http://www.judis.nic.in Page 14 of 42 W.P.No.9328 of 2020 arise during the currency of that list. Rule 4(a)(2) requires that persons who are included in the previous year's list of approved candidates but who have not commenced their probation should be considered for inclusion in the next year's list. The explanation under the rule further clarifies that in considering the inclusion of such persons in the current year's list, it shall not be necessary to carry forward the names of all such persons without having regard to the relative merit and ability.” Apart from the aforesaid prescription of a statutory rule, paragraph 3 of the judgment records as under:-
“3.Apart from the aforesaid rules, the government have also issued very clear instructions from time to time viz. GO Rt. No. 1042-G.A. (Ser-A) Department dated June 15, 1966, GOMs No. 485-G.A. (Ser-A) Department dated July 26, 1968, GOMs No. 202- G.A. (Ser-A) Department dated April 4, 1969 and Memo No. 1476/Service/A/72-2 dated November 7, 1975. The Memo dated November 7, 1975 in para 5 and 6 states:
“5. It needs hardly be urged that prompt preparation of panels is essential both for increasing administrative efficiency, and also for filling up vacancies without delay.
6. All the appointing authorities are directed to bear in mind the instructions issued on the preparation of panels and ensure that the panels are prepared promptly in the month of September every year.” It is in the light of the said rules and instructions that the challenge came to be considered as an amendment had been brought about in the rules. The question raised was that the rules which were prevalent http://www.judis.nic.in Page 15 of 42 W.P.No.9328 of 2020 at the time of the preparation of the list should be enforced. The Apex Court, then, in paragraph 9 held as follows:-
“9.Having heard the counsel for the parties, we find no force in either of the two contentions. Under the old rules a panel had to be prepared every year in September. Accordingly, a panel should have been prepared in the year 1976 and transfer or promotion to the post of Sub-Registrar Grade II should have been made out of that panel. In that event the petitioners in the two representation petitions who ranked higher than Respondents 3 to 15 would not have been deprived of their right of being considered for promotion. The vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. It is admitted by counsel for both the parties that henceforth promotion to the post of Sub-Registrar Grade II will be according to the new rules on the zonal basis and not on the State-wide basis and, therefore, there was no question of challenging the new rules. But the question is of filling the vacancies that occurred prior to the amended rules. We have not the slightest doubt that the posts which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules.”
14.It is, therefore, evident, that in the said case, there were statutory rules, even though followed by certain instructions issued later, on the basis whereof the Apex Court acknowledged the rights having accrued on account of the operation of the rule that was http://www.judis.nic.in Page 16 of 42 W.P.No.9328 of 2020 existing when the vacancies arose and the panel had to be prepared accordingly.
15.The decision of the Apex Court that came to distinguish the judgment in Y.V.Rangaiah (supra), on the ground that it could apply only where there are statutory rules, is in the case of Rajasthan State Sports Council vs Uma Dadhich, (2019) 4 SCC 316, paragraphs 5 and 6 are extracted hereinunder:-
“5.There is merit in the submission which has been urged on behalf of the appellants that the respondent had no vested right to promotion but only a right to be considered in accordance with the rules as they existed on the date when the case for promotion was taken up. This principle has been reiterated in several decisions of this Court. (See H.S. Grewal v. Union of India [H.S. Grewal v. Union of India, (1997) 11 SCC 758 : 1998 SCC (L&S) 420] , Deepak Agarwal v. State of U.P. [Deepak Agarwal v. State of U.P., (2011) 6 SCC 725 : (2011) 2 SCC (L&S) 175] , State of Tripura v. Nikhil Ranjan Chakraborty [State of Tripura v. Nikhil Ranjan Chakraborty, (2017) 3 SCC 646 : (2017) 1 SCC (L&S) 718] and Union of India v. Krishna Kumar [Union of India v. Krishna Kumar, (2019) 4 SCC 319] .)
6.The judgment in Y.V. Rangaiah v. J. Sreenivasa Rao [Y.V. Rangaiah v. J. Sreenivasa Rao, (1983) 3 SCC 284 : 1983 SCC (L&S) 382] dealt with a situation where the rules required that the promotional exercise must be completed within the relevant year. Rangaiah case [Y.V. Rangaiah v. J. Sreenivasa Rao, (1983) 3 SCC 284 : 1983 SCC (L&S) http://www.judis.nic.in Page 17 of 42 W.P.No.9328 of 2020 382] , has hence been distinguished in the judgments noted above.”
16.This has also been followed in State of Orissa vs. Dhirendra Sundar Das, (2019) 6 SCC 270, where following the judgment in the case of Deepak Agarwal vs. State of U.P. (2011) 6 SCC 725, the Apex Court, in paragraphs 9.10 to 9.15 held as follows:-
“9.10. The list of candidates recommended by the Orissa Public Service Commission under Regulation 9 was required to be placed before the State Government. The said list, after any approval with modification, was to form the final list from which appointments were to be made to OAS Class II posts by way of selection or promotion in accordance with Regulation 10. Thus, the recruitment process by way of selection or promotion, as the case may be, initiated in accordance with Regulation 6 would culminate on the making of a final list as per Regulation 10. Appointments by way of promotion or selection could be made only from amongst the candidates whose names featured in the final list prepared by the Commission, and placed before the State Government.
9.11.In Deepak Agarwal v. State of U.P. [Deepak Agarwal v. State of U.P., (2011) 6 SCC 725 : (2011) 2 SCC (L&S) 175] this Court had held that the right to be considered for promotion accrues on the date of consideration of eligible candidates. The relevant extract of the decision is extracted hereinbelow for ready reference: (SCC p 735, para 26) http://www.judis.nic.in Page 18 of 42 W.P.No.9328 of 2020 “26. It is by now a settled proposition of law that a candidate has the right to be considered in the light of the existing rules, which implies the “rule in force” on the date the consideration took place. There is no rule of universal or absolute application that vacancies are to be filled invariably by the law existing on the date when the vacancy arises.
The requirement of filling up old vacancies under the old rules is interlinked with the candidate having acquired a right to be considered for promotion. The right to be considered for promotion accrues on the date of consideration of the eligible candidates. Unless, of course, the applicable rule, as in Y.V. Rangaiah case [Y.V. Rangaiah v. J. Sreenivasa Rao, (1983) 3 SCC 284 : 1983 SCC (L&S) 382] lays down any particular time-frame, within which the selection process is to be completed. In the present case, consideration for promotion took place after the amendment came into operation. Thus, it cannot be accepted that any accrued or vested right of the appellants has been taken away by the amendment.” 9.12. In the present case, the names of 559 candidates, including the contesting respondents, were merely recommended by their respective Departmental Authorities under Regulation 6. The recruitment process did not proceed any further in accordance with Regulations 7, 8, 9 and 10. No final list of selected candidates was placed by the Orissa Public Service Commission before the State Government for the purposes of appointment as against the vacancies of 2008.
9.13.As such, the contesting respondents who had merely been recommended by their respective Departmental Authorities could not be considered to be “eligible” for appointment by way of promotion or selection under the erstwhile OAS Class II Regulations, 1978, since the steps set out in the Regulations mentioned below had not http://www.judis.nic.in Page 19 of 42 W.P.No.9328 of 2020 been completed prior to the repeal of the old OAS Class II Rules, 1978 and the OAS Class II Regulations, 1978:
i. Regulation 7 — preparation of a list of suitable candidates by the Selection Board;
ii. Regulation 8 — consultation with the Orissa Public Service Commission;
iii. Regulation 9 — recommendation of the Orissa Public Service Commission; and iv. Regulation 10 — preparation and placement of final list before the State Government for appointment. Thus, the contesting respondents had not acquired an accrued or vested right of selection or promotion to OAS Class II posts in accordance with the OAS Class II Rules, 1978 and the OAS Class II Regulations, 1978, since their names had never been considered for selection or promotion beyond the stage contemplated under Regulation 6.
9.14.Reliance placed by the counsel for the respondents on Y.V. Rangaiah v. J. Sreenivasa Rao [Y.V. Rangaiah v. J.
Sreenivasa Rao, (1983) 3 SCC 284 : 1983 SCC (L&S) 382] in order to submit that the vacancies which had arisen under the old Rules would be governed by the old Rules, is of no avail.
9.15.A similar submission was rejected by this Court in Deepak Agarwal v. State of U.P. [Deepak Agarwal v. State of U.P., (2011) 6 SCC 725 : (2011) 2 SCC (L&S) 175] The relevant excerpt of the decision is reproduced hereinbelow: (SCC p. 735, paras 24-25) “24. We are of the considered opinion that the judgment inY.V. Rangaiah case [Y.V. Rangaiah v. J. Sreenivasa Rao, (1983) 3 SCC 284 : 1983 SCC (L&S) 382] would not be applicable in the facts and circumstances of this case. The aforesaid judgment was rendered on the http://www.judis.nic.in Page 20 of 42 W.P.No.9328 of 2020 interpretation of Rule 4(a)(1)(i) of the Andhra Pradesh Registration and Subordinate Service Rules, 1976. The aforesaid Rule provided for preparation of a panel for the eligible candidates every year in the month of September. This was a statutory duty cast upon the State. The exercise was required to be conducted each year. Thereafter, only promotion orders were to be issued. However, no panel had been prepared for the year 1976. Subsequently, the Rule was amended, which rendered the petitioners therein ineligible to be considered for promotion. In these circumstances, it was observed by this Court that the amendment would not be applicable to the vacancies which had arisen prior to the amendment. The vacancies which occurred prior to the amended Rules would be governed by the old Rules and not the amended Rules.
25. In the present case, there is no statutory duty cast upon the respondents to either prepare a yearwise panel of the eligible candidates or of the selected candidates for promotion. In fact, the proviso to Rule 2 enables the State to keep any post unfilled. Therefore, clearly there is no statutory duty which the State could be mandated to perform under the applicable Rules. The requirement to identify the vacancies in a year or to take a decision as to how many posts are to be filled under Rule 7 cannot be equated with not issuing promotion orders to the candidates duly selected for promotion. In our opinion, the appellants had not acquired any right to be considered for promotion. Therefore, it is difficult to accept the submissions of Dr Rajeev Dhavan that the vacancies, which had arisen before 17-5-1999 had to be filled under the unamended Rules.”
17.However, the legal picture gets more clarity with the judgment cited at the bar by Mr.Karthik Rajan in the case of Union of India vs. N.C.Murali, (2017) 3 SCC 575, where the Apex Court was considering the applicability of consolidated instructions to be http://www.judis.nic.in Page 21 of 42 W.P.No.9328 of 2020 followed by the Departmental Promotion Committee in the Geological Survey of India for Group 'A' services. Paragraphs 11 to 13 of the said judgment would indicate the consideration of the instructions which were in the shape of a circular. The same are extracted hereinunder:-
“11. The learned counsel appearing for the respondents has referred to paras 6.4.1 and 3.1 of the said circular. Para 3.1 of the circular is as follows:
“3.1. The DPCs should be convened at regular annual intervals to draw panels which could be utilised on making promotions against the vacancies occurring during the course of a year. For this purpose, it is essential for the appointing authorities concerned to initiate action to fill up the existing as well as anticipated vacancies well in advance of the expiry of the previous panel by collecting relevant documents like CRs, integrity certificates, seniority list, etc. for placing before the DPC. DPCs could be convened every year, if necessary, on a fixed date 1st April or May. The Ministries/Departments should lay down a time-schedule for holding DPCs under their control and after laying down such a schedule the same should be monitored by making one of their officers responsible for keeping a watch over the various cadre authorities to ensure that they are held regularly. Holding of DPC meetings need not be delayed or postponed on the ground that recruitment rules for a post are being reviewed/amended. A vacancy shall be filled in accordance with the recruitment rules in force on the date of vacancy unless rules made subsequently have been expressly given retrospective effect. Since amendment to recruitment rules normally have only prospective application, the existing vacancies should be filled as per the recruitment rules in force.”
12. Further, Para 6.4.1, on which reliance has been placed, is to the following effect:
http://www.judis.nic.in Page 22 of 42 W.P.No.9328 of 2020 “6.4.1. Where for reasons beyond control, the DPC not be held in a year(s), even though the vacancies arose during that year (or years), the first DPC that meets thereafter should follow the following procedures:
(i) Determine the actual number of regular vacancies that arose in each of the previous year(s) immediately preceding and the actual number of regular vacancies proposed to be filled in the current year separately.
(ii) Consider in respect of each of the years—those officers only who would be within the field of choice with reference to the vacancies of each year starting with the earliest year onwards.
(iii)Prepare a “select list” by placing the select list of the earlier year above the one for life year and so on.
13. From the materials brought on the record, it is clear that there were no statutory rules governing the promotion at the relevant time. It is although desirable that DPC should be convened at regular intervals to draw panels which could be utilised for making promotions against the vacancies. But neither any rules nor any circular have been referred to by which it can be held that the promotions whenever to be effected should be effected w.e.f. the date of the vacancy. The Circular dated 10-4-1989, Paras 3.1 and 6.4.1, as reproduced above, also do not indicate that in case DPC is not held by any reason in a year, promotions on the basis of subsequent DPC has to be retrospective.” http://www.judis.nic.in Page 23 of 42 W.P.No.9328 of 2020
18.The Apex Court finally concluded in paragraphs 17 and 18 as follows:-
“17.In view of the law laid down in the abovementioned cases, it is clear that unless there is specific rule entitling the applicants to receive promotion from the date of occurrence of vacancy, the right of promotion does not crystallise on the date of occurrence of vacancy and the promotion is to be extended on the date when it is actually effected.
18.However, there may be cases when the promotions have to be retrospectively made with or without financial benefits. A well-known example of giving retrospective promotion is cases of sealed cover procedure when the recommendations are kept in sealed cover procedure awaiting the outcome of disciplinary proceedings. There may be other circumstances in which a person is entitled to be given the benefit of retrospective promotion including a case where statutory rules mandates effecting promotion by particular time or on occurrence of vacancy.”
19.Following the ratio of the said decisions and discussing the law further lucidly and elaborately, a learned single Judge of the Allahabad High Court in the case of Mahjabeen Fatima Ahmad and Ors. vs. High Court of Judicature at Allahabad and Ors., MANU/UP/1994/2019 :: 2019 (7) ADJ 222 in paragraphs 32 and 33 has discussed the law from which we find support. Paragraph 33 of the said judgment is extracted hereinunder:-
http://www.judis.nic.in Page 24 of 42 W.P.No.9328 of 2020 “33. Bearing in mind the principles elucidated in Pradeep and Mohd. Firoz, it is manifest that the submission addressed by Sri Goel would not merit acceptance. Firstly and as was recognized in the decisions noted above, no indefeasible or inviolable rights stood created in favour of aspiring candidates in terms of the original recruitment notice. Admittedly, the only process which was completed under the original recruitment notice was a receipt of applications from candidates desirous of participating in the promotional exercise. Neither a written examination nor interview was conducted in terms of the original notice. No assessment of character roll entries was undertaken by the respondents pursuant to this notice. The only facet of the original notice which was saved in the entire promotional exercise was the preservation of applications received in response to this notice. On a more fundamental plane, it clearly does not lie in the mouth of the respondents to urge this submission. This since principally it could have been a contention which could have been urged or raised by a candidate whose rights, if found to exist at all, stood infringed. Additionally, the Court notes [and which aspect has again been noticed in Pradeep which explained Y.V. Rangaiah], the 1976 Rules do not envisage or mandate a periodical exercise of promotion being undertaken. Viewed in light of the distinguishing feature underlying Y.V. Rangaiya which was noticed and explained in Pradeep, the submission does not merit acceptance.” In the instant case also, the exercise of promotion had been initiated only with the issuance of a suitability list and therefore, there was no concluded or accrued right in favour of the petitioner.
http://www.judis.nic.in Page 25 of 42 W.P.No.9328 of 2020
20.From a conspectus of the aforesaid law laid down by the Apex Court, it is clear that where there are statutory rules making a prescription for conducting the exercise of promotion by a time schedule and giving effect to the same retrospectively as well, relating it to the date of the vacancy, then only can an accrued right be claimed by a candidate and not otherwise. The claim cannot be raised on the basis of any guidelines or instructions unless it is backed up by a statutory rules. This is not to say that the employer / Government should not obey its own instructions or guidelines even if they are directory. The process should be ensured in order to infuse fairness in the proceedings, but the question of accrual of rights for promotion would arise only if it has a statutory foundation to give effect to the same. It is in this background that we have to consider as to whether the petitioner has any right which can be said to have vested in him or accrued to him, the divesting whereof through the impugned rule would amount to violation of Article 14 of the Constitution of India.
21.For this, we will have to first assess the impact of Board Proceedings No.212, dated 12.06.1987 and the memo dated 30.01.2009 issued by the order of the Chairman on which reliance has been placed by the learned counsel for the petitioner. We may extract the Board proceedings No.212, dated 12.06.1987, which is as under:-
http://www.judis.nic.in Page 26 of 42 W.P.No.9328 of 2020 “Establishment-Promotion of officials to higher posts-Fixing up crucial dates for consideration of claims of officials, Dates for approval of panels, Estimation of vacancies, etc. in respect of panels to be approved in Board office Administrative Branch-Orders issued.
B.P. Ms.(Ch) No.212 (Sectt. Branch) Dated the 12th June 1987 Proceedings:
It is noticed that panels of officials suitable for promotion to higher posts are prepared on the basis of requirements assessed as and when necessity arises rather than on a scientific basis. It is considered desirable that panels are prepared well in advance to meet the requirements of one year so that appointments can be made from the panel when necessity arises therefor without any delay thereby eliminating the need for keeping a post vacant. After careful consideration, it has been decided that a crucial date be fixed for preparation of panel for each category and a programme of action also determined so as to ensure that the panel is prepared well in advance. The validity of the panel will be for one year from the date of approval of panel.
2.Accordingly, it is hereby ordered that the crucial dates for preparation of the panels and the programme of action for approval of the panels in respect of various categories of officials for which panels are prepared in the Board Office Administrative Branch shall be indicated in Annexure-I to these proceedings.
3.It is also ordered that estimation of vacancies for one year shall be done as indicated in the format in Annexure-II to these proceedings.
http://www.judis.nic.in Page 27 of 42 W.P.No.9328 of 2020
4.It is also noticed that full particulars of the officials to be considered for promotion are not furnished to the Departmental Promotion Committees. Much time has to be wasted by the Members of the Committees in referring to personal files, checking up details, etc. With a view to avoiding such difficulties, it is hereby ordered that each case of the official to be considered by the Departmental Promotion Committee shall be put up to the Committee furnishing the particular as per the format in Annexure- III to these proceedings. When the case is put up for orders by the appointing authority -, Chairman, Chief Engineer (Personnel), etc. - the same format will be used with the addition of the following column as the last one, namely, “Remarks of the Departmental Promotion Committee on whether he can be promoted or not”.
5.As for the panels prepared in the offices of Superintending Engineer of Systems/Circles for various categories, it is ordered that the panels for various categories should be prepared and finalised every year during the months indicated below:-
Panel of Officials Month in which panel
for appointment of has to be finalised
(1) (2)
1.Wireman and equivalent categories \ March
2.Lineman and equivalent categories \
3.Line Inspector and equivalent categories \ April
4.Foreman Grade I and equivalent categories \ (By order of the Chairman) P.Easwaramurthi, Secretary.
http://www.judis.nic.in Page 28 of 42 W.P.No.9328 of 2020 ANNEXURE – I Sl.No Panel of Officials for appointment Crucial date Due date for field Due date for the Due date for of officers to send headquarters to finalisation and updated Personal finalize publication of Files/Record Sheets estimation of panel of punishments, etc. vacancies (1) (2) (3) (4) (5) 1. Draughtsman Grade-I 2. Draughtsman Grade-II 20th January 5th January 5th January 20th February 3. Draughtsman Grade-III 4. Senior Chemist 5. Junior Chemist 20th February 5th February 5th February 20th March 6. Store Keeper-I Grade 7. Assistants in Board Office Administrative Branch and Technical Branch 8. Assistants in Systems/Circles 20th March 1st March 1st March 30th April 9. Accountant 10. Deputy Stores Officer 11. Inspector of Assessment 12. Revenue Supervisor 13. Assistant Accounts Officer 14. Junior Engineer (Electrical), 25th March 5th March 5th March 25th April Grade-I 15. Personal Assistant 16. Chief Head Draughtsman 17. Accounts Officer 18. Junior Engineer (Civil) Grade- 20th April 5th April 5th April 5th May I 19. Junior Engineer (Mechanical) Grade-I 20. Superintendent 21. Deputy Stores Officer 5th May 5th April 5th April 1st June 22. Chief Stores Officer 23. Assistant Divisional Engineer (Mechanical) 24. Assistant Executive Engineer 5th June 5th May 5th May 1st July (Civil) 25. Assistant Divisional Engineer (Electrical) 5th August 5th July 5th July 5th September 26. Stores Officer http://www.judis.nic.in Page 29 of 42 W.P.No.9328 of 2020 ANNEXURE – II Format for estimation of vacancies
(To be worked out WITH reference to crucial date)
1. Total strength of the cadre
2. Actual holders of posts
3. Vacant posts (1) – (2)
4. Incumbents likely to retire in the next one year
5. Posts likely to be sanctioned
6. Incumbents likely to be promoted
7. Posts likely to be surrendered
8. Total vacancies likely to arise [(3) + (4) + (5) + (6) ] - (7)
9. 25% of the cadre strength for unforeseen contingencies
10. 5% of cadre strength for leave vacancies
11. Net requirement (8) + (9) + (10) ANNEXURE – III Format in which particulars of officials to be considered by Departmental Promotion Committee are to be furnished
1. Name and designation of the official -
2. Age and date of birth -
3. Date of retirement -
4. Education qualifications -
5. Date of regular appointment, date of completion of probation and total service in the present post held -
6. Whether the official has acquired all the qualifications prescribed in the Service Regulations or adhoc rules for the higher post. -
7. Whether any penalty has been imposed on the official and if so, the nature of charge and nature of penalty imposed
8. Whether there is any adverse remark in the personal file and if so, indicate the details thereof. Gist of remarks in the P.F. / Record sheet of punishments may be given at the end. -
9. Whether any charge is pending against the official, and if so, indicate the nature of charge and the present stage -
10. Gist of remarks in personal file for each year in the post now held. -
22.We now come to the subsequent memo dated 30.01.2009 http://www.judis.nic.in Page 30 of 42 W.P.No.9328 of 2020 which is extracted herein under:-
“Memo No.6029/A18/A181/2009-1 (Secretariat Branch) dated 30.01.2009 Sub: Establishment – T.N.E.B. - Promotion of various categories to higher posts – Delay in preparing panels on the crucial dates by the panel preparing authorities – Non-adherence of Board's orders by the panel preparing authorities – Instructions – Issued – Reiterated.
Ref: 1) B.P.Ms.(Ch.) No.182 (SB) dated 18.5.1987.
2)B.P.Ms. (Ch.) No.212 (SB) dated 12.6.1987.
3)B.P.Ms.(Ch.) No.387 (SB) dated 9.11.1987.
4)Cir.Memo No.41388/P1/98-1, dt.2.7.1999.
5)Memo No.3618/A18/A181/2006-1, dt.30.9.2006.
In the reference fourth cited, instructions were issued to all the Field Officers and Forwarding Officers directing that they should forward the updated particulars required for preparing the panels, to the Headquarters on or before the due dates as prescribed in the Annexure to the B.Ps. cited without fail. In the reference fifth cited, instructions have also been issued to all the Panel Preparing Authorities that they should prepare the panels on the crucial dates prescribed in the annexure to the B.Ps. cited, in time, without any delay as it involves the career prospects of the employees of the Board.
2.In spite of repeated instructions, instances have come to the notice of the Board that the Field Officers do not forward the updated particulars to the Headquarters in time and that certain panel Preparing Authorities also do not prepare the panels for various categories on the crucial dates fixed in Board's Proceedings cited, which cause several hardships to the prospective promotees. Certain employees have retired from Board's service without getting promotion due to this and consequently retirement benefits also.
3.In view of the above, it is hereby reiterated that all the Field Officers should forward the updated particulars on the due date and all the Panel Preparing Authorities should prepare the panel on the crucial dates prescribed in the annexure to the Board's Proceedings cited respectively in time without any delay.
4.The above instructions should be followed scrupulously by all the Field Officers and Panel Preparing Authorities. Otherwise, responsibility will be fixed on the officers concerned and suitable action will also be taken against them for their failure.
(By order of the Chairman) R.Kathirvel Secretary.
23.A perusal of the same would indicate that they have been http://www.judis.nic.in Page 31 of 42 W.P.No.9328 of 2020 issued under the orders of the Chairman, but they are not amendments that can be said to be authorised by way of delegation of power under Regulation 5 of the Service Regulations. Regulation 5 of the Service Regulations are extracted hereinunder:-
“5.The Board may delegate any of its powers under these regulations to the Chairman or any Officer under it. No person other than the competent authority prescribed under these regulations shall exercise or delegate powers under these regulations without the general specific orders from the Tamil Nadu Electricity Board.”
24.The Board cannot be said to have delegated its power so as to amend the regulations, as the said proceedings are not of any amendment in the regulations and are rather guidelines issued through an executive order to ensure that the promotions are finalised annually and do not get stalled on any bureaucratic meddling. The memo dated 30.01.2009 also is to the same effect.
25.We agree with the observations made by the learned single Judge in the case of the Chief Engineer/Personnel (supra) where in paragraph 9, the learned single Judge has indicated as under:-
“9.The Labour Court came to be guided by the fact that such crucial dates were not followed earlier by the board from http://www.judis.nic.in Page 32 of 42 W.P.No.9328 of 2020 1987 to 1995 and there was no reason as to why it needs to be brought in during 1996. Further, the Labour Court placed heavy reliance on the memorandum of the board dated 26.06.1992 and issued a positive direction to include the name of the second respondent at the appropriate place in the panel dated 18.10.1996. The reasons assigned by the Labour Court for passing the impugned award is not sustainable for more than one reason. Firstly, the board is empowered to issue directions in the form of board proceedings for the purpose of regulating activities and business and such proceedings could supplement the statutory Regulations. One such proceedings is BP Ms(ch) No 212 dated 12.06.1987 in and by which crucial dates have been fixed for consideration of promotion, in respect of various post. Whether such crucial dates were followed on earlier occasions is of no consequences, since the board decided to adhere to same while drawing the panel for 1996. It is to be noted that there is no challenge to the said BP No.212. In such circumstances the action of the board in fixing up the crucial date cannot be faulted merely on the ground that such crucial dates were not followed during earlier years and this is no ground to state that the same should not have been followed in 1996.”
26.The observations made by another learned single Judge in the case of J.P.Rajasekara Kumaragurubaran (supra) in paragraph 7 are extracted hereinunder:-
“7.Learned counsel appearing for the petitioner contended that the cut off date cannot be applied on the present case, since http://www.judis.nic.in Page 33 of 42 W.P.No.9328 of 2020 the list was admittedly drawn only in August 2006 namely five months after the cut off date and that therefore, the schedule fixed for completing the process, totally failed. But, such a contention cannot be accepted. If the statutory rules or Board proceedings prescribe a cut off date, for determining the eligibility of persons for entitlement to promotion, the same cut off date will have to be applied for the vacancy which is sought to be filled up in that year. Therefore, I do not find any merits in the Writ Petitin and the same dismissed.”
27.However, the aforesaid decisions have now to be read in the light of the law that has been declared by the Apex Court in the cases above, particularly that of Union of India vs. N.C.Murali (supra), which leaves no room for doubt that unless there is a statutory rule prescribing the accrual of any such benefits, a right to seek promotion from the date of occurrence of vacancy on the basis of mere instructions or resolutions may not be available. The argument raised by the petitioner's counsel has therefore to be rejected.
28.In the aforesaid circumstances, we find that the Board Proceedings even though applied for more than three decades by itself, yet, the law laid down in the case of Y.V.Rangaiah (supra) cannot come to the aid of the petitioner in the light of the distinction drawn by the Apex Court in the cases referred to above and the http://www.judis.nic.in Page 34 of 42 W.P.No.9328 of 2020 decision in the case of Union of India vs. N.C.Murali (supra). The legal option of enforcing the Board Proceedings No.212 dated 12.06.1987 and the memo dated 30.01.2009, so as to confer an accrued right in favour of the petitioner, therefore, does not appear to be available.
29.There is yet another judgment which deserves reference and has been cited by Mr.Karthik Rajan, which is in the case of Union of India vs. S.L.Abbas, (1993) 4 SCC 357, where in matters of transfer, it was observed that guidelines if not followed cannot vitiate an order of transfer which is subject to a statutory rule.
30.The next decision relied on by him in the case of Chief Commercial Manager, South Central Railway vs. G.Ratnam, (2007) 8 SCC 212, while considering the impact of Vigilance Manual, the Apex Court in paragraph 19 observed “Broadly speaking, the administrative rules, regulations and instructions, which have no statutory force, do not give rise to any legal right in favour of the aggrieved party and cannot be enforced in a court of law against the administration”. Paragraphs 19 and 20 of the said judgment are extracted herein under:-
“19. We have carefully gone through the contents of http://www.judis.nic.in Page 35 of 42 W.P.No.9328 of 2020 various chapters of the Vigilance Manual. Chapters II, III, VIII, IX and Chapter XIII deal with Railway Vigilance Organisation and its role, Central Vigilance Commission, Central Bureau of Investigation, investigation of complaints by Railway Vigilance, processing of vigilance cases in Railway Board, suspension and relevant aspects of Railway Servants (Discipline and Appeal) Rules, 1968 as relevant to vigilance work, etc. Paras 704 and 705, as noticed earlier, cover the procedures and guidelines to be followed by the investigating officers, who are entrusted with the task of investigation of trap cases and departmental trap cases against the railway officials. Broadly speaking, the administrative rules, regulations and instructions, which have no statutory force, do not give rise to any legal right in favour of the aggrieved party and cannot be enforced in a court of law against the administration. The executive orders appropriately so-called do not confer any legally enforceable rights on any persons and impose no legal obligation on the subordinate authorities for whose guidance they are issued. Such an order would confer no legal and enforceable rights on the delinquent even if any of the directions is ignored, no right would lie. Their breach may expose the subordinate authorities to disciplinary or other appropriate action, but they cannot be said to be in the nature of statutory rules having the force of law, subject to the jurisdiction of certiorari.
20. It is well settled that the Central Government or the State Government can give administrative instructions to its servants how to act in certain circumstances; but that will not make such instructions statutory rules which are justiciable in certain circumstances. In order that such executive instructions have the force of statutory rules, it must be shown that they have http://www.judis.nic.in Page 36 of 42 W.P.No.9328 of 2020 been issued either under the authority conferred on the Central Government or the State Government by some statute or under some provision of the Constitution providing therefor. Therefore, even if there has been any breach of such executive instructions that does not confer any right on any member of the public to ask for a writ against the Government by a petition under Article 226 of the Constitution of India.”
31.There is another judgment cited by the learned counsel for the respondent, which deserves reference in the case of State of Jammu and Kashmir vs. Shiv Ram Sharma and Others, (1999) 3 SCC 653, where in paragraph 6, it has been held as follows:-
“6. The law is well settled that it is permissible for the Government to prescribe appropriate qualifications in the matter of appointment or promotion to different posts. The case put forth on behalf of the respondents is that when they joined the service, the requirement of passing matriculation was not needed and while they are in service, such prescription has been made to their detriment. But it is clear that there is no indefeasible right in the respondents to claim for promotion to a higher grade to which qualification could be prescribed and there is no guarantee that those rules framed by the Government in that behalf would always be favourable to them. In Roshan Lal Tandon v. Union of India [AIR 1967 SC 1889 : (1968) 1 SCR 185 : (1968) 1 LLJ 576] it was held by this Court that once appointed, an employee has no vested right in regard to the terms of service but acquires a status and, therefore, the rights and obligations thereto are no longer determined by the consent of the parties, but by statute or http://www.judis.nic.in Page 37 of 42 W.P.No.9328 of 2020 statutory rules which may be framed and altered unilaterally by the Government. The High Court has also noticed that there was an avenue provided for promotion but the prescription of the qualification was not favourable to the respondents. The principle of avoiding stagnation in a particular post will not be with reference to a particular individual employee but with reference to the conditions of service as such. As long as the rules provide for conditions of service making an avenue for promotion to higher grades, the observations made in T.R. Kothandaraman case [(1994) 6 SCC 282 : 1994 SCC (L&S) 1366 : (1994) 28 ATC 276] stand fulfilled. In that view of the matter, we do not think the High Court was justified in allowing the writ petitions filed by the respondents.”
32.Thus, in our opinion also, the respondent Corporation had the authority to prescribe appropriate qualifications for promotion and there is no lack of competence to do so.
33.The consideration for promotion after the amendment in the rule therefore would be justified as the rule does not appear to be invalid. The claim of the petitioner that it cannot be given retrospective effect stands legally answered as above. There was therefore no vested right accrued in favour of the petitioner so as to be affected by the introduction of the amendment in the rule. The question of retrospective application, therefore, does not arise at all.
http://www.judis.nic.in Page 38 of 42 W.P.No.9328 of 2020 The petitioner was yet to be considered for promotion and the mere drawing of a suitability list does not confer any vested right that can be enforced even on the strength of a stated legitimate expectation.
This is evident from the judgments which have been cited at the bar and are referred to herein above. There is no rule or prescription so as to give retrospective effect to promotion from the date of occurrence of vacancy. Consequently, the arguments raised on this count do not hold water.
34.One of the submissions raised is that the terms and conditions have been altered without complying with the provisions of Section 9A of the Industrial Disputes Act, 1947. Suffice it to say, to establish the same, the petitioner may have to raise a dispute before the appropriate forum, but, in our opinion, so long as the regulations statutorily framed exist and a challenged raised to it does not suffer from the vice of Article 14, we are not called upon to delve into the said issue, as we have found that the petitioner does not have a legally enforceable right of promotion from the date of availability of a vacancy on the strength of the suitability list drawn on 08.03.2019.
35.The contention advanced also is that the respondents have violated their undertaking given before this Court that was recorded in http://www.judis.nic.in Page 39 of 42 W.P.No.9328 of 2020 the order dated 18.03.2020 in W.P.No.18664 of 2019. The order which is extracted in paragraph 2 hereinabove clearly indicates that the undertaking was of extending the benefit of consideration of promotion simultaneously to the petitioners therein as well as to the private respondents. The order nowhere was concerned with any proposal or discussion of the law of applying retroactive operation of promotion to be given effect to from retrospective date or the date of occurrence of vacancy. In our opinion, the said order or undertaking does not in any way debar the respondents Corporation from bringing about any amendment in the regulations, which was done three months thereafter. There was no undertaking that the respondents would not amend the rules in future in the said order so as to construe a violation thereof. The said argument is also, therefore, not tenable.
For the foregoing reasons, the Writ Petition lacks merit and is, accordingly, dismissed. No costs. Consequently, connected miscellaneous petitions are also dismissed.
(A.P.S., CJ.) (S.K.R., J.) 22.09.2020 Index : Yes sra http://www.judis.nic.in Page 40 of 42 W.P.No.9328 of 2020 To
1.The Chairman cum Managing Director, Tamil Nadu Generation and Distribution Corporation Limited, No.144, Anna Salai, Chennai 600 002.
2.The Chief Engineer/Personnel, Tamil Nadu Generation and Distribution Corporation Limited, No.144, Anna Salai, Chennai 600 002.
3.The Superintending Engineer, Thiruvannamalai Electricity Distribution Circle, Thiruvannamalai – 606 604.
http://www.judis.nic.in Page 41 of 42 W.P.No.9328 of 2020 The Hon'ble Chief Justice and Senthilkumar Ramamoorthy, J.
(sra) W.P.No.9328 of 2020 22.09.2020 http://www.judis.nic.in Page 42 of 42