The petitioner has sought for a direction to the respondents to conduct an interview as per the list furnished by the Employment Exchange and to implement G.O.Ms.No.21 Employment Services Department dated 23.08.1983 for the 1000 posts of Assessors notified by the first respondent Electricity Board.
2. When the matter came up on 10.08.2009, this Court directed the material papers to be served on the Standing Counsel for the respondents. Accordingly, Mr.M.Vaidyanathan, learned Standing Counsel for the Tamil Nadu Electricity Board (TNEB) has produced written instructions from them.
3. The case of the petitioner was that he is a qualified candidate for the post of Assessor in the TNEB. He had passed Higher Secondary examination during March 1990 and also studied Diploma in Pharmacy, which was registered in Register of Pharmacists. The first respondent TNEB was in need of Helpers and had notified to various Employment Exchanges. The petitioner got himself registered with the Employment Exchange at Vellore on 04.02.1985. The petitioner also got his Diploma in Pharmacy registered with the Employment Exchange. The petitioner was awaiting that he will be called for an interview. The petitioner is 40 years old and he belong to Schedule Caste community. But his name was wrongly included as one belonging to Other Community. Because of this, his name was not included in the priority category and his name was also not sponsored. The petitioner also claimed that while the other candidates whose names were sponsored were only SSLC, the petitioner had passed Higher Secondary and has a Diploma in Pharmacy. The petitioner claims that the respondent is bound to consider all the names which was sponsored by the Employment Exchange and they cannot adopt any discrimination.
4. On notice from this Court, the respondent contended that the Board has issued B.P.No.22 (Adm.Br.) dated 04.10.2006 for filling up 600 posts of Assessor Grade II by direct recruitment. The Employment Exchanges were asked to sponsor candidates in the ratio of 1:5 in terms of G.O.Ms.No.18 dated 06.02.2008. The Employment Exchanges sponsored the names of 2859 candidates. As per the notification issued as on 01.07.2007, candidates should not have crossed 40 years of age in case of SC/ST, 37 years for MBC/BC and 35 years for OC. Under Regulation 94 of the TNEB Service Regulation, the qualification prescribed for the post of Assessor Grade II by direct recruitment has been fixed. The minimum educational qualification was only a pass in 10th standard. It was also further stated those who were technically qualified with NTC/NAC and Diploma Holders as per the judgment of the Supreme Court in S.L.P.No.19266 of 2006 (Civil Appeal No.1279 of 2008) dated 14.02.2008, (since reported in 2008 AIR SCW 1967 : TNEB v. TNEB Thozhilalar Aikya Sangam) it was held that the Diploma Holders are not eligible for promotion on the ministerial side. In the said judgment, the Supreme Court had held as follows:
"Therefore, in this view of the matter that the Board has decided to lay down a qualification for appointment to the post of Helper i.e. NTC/NAC and provided a channel of promotion for such persons to the higher post on technical side, such provision cannot be said to be ultra vires of Articles 14,16 and 19(1)(g)."
5. It was stated that the Board had rejected the case of 65 Diploma Holders along with other candidates since they were having qualification for some other post. Therefore, they did not send call letters to those 65 candidates for the interview conducted on 22.06.2009. In so far as the petitioner is concerned, he is having an higher qualification, namely Diploma in Pharmacy and therefore, his name was not sponsored for the post of Assessor Grade II and no call letter was sent to him in view of the same.
6. The learned counsel for the petitioner contended that such a stand taken by the respondent was not valid. He placed reliance upon the judgment of the Supreme Court in Mohd.Riazul Usman Gani and others v. District and Sessions Judge, Nagpur and others reported in AIR 2000 SC 919. In paragraph 18, it was observed as follows:
"18. If the appointment of a candidate to the post of peon is restricted to his having qualified up to Standard VII he will have no chance of promotion to the post of Regional Language Section Writer or a Clerk, it is not that qualifications required for Regional Language Section Writer and Clerk are to be acquired by a peon during the course of his service. During the course of hearing we were referred to a few applications submitted by peons who are already working wherein they had prayed for their being considered for appointment to post of clerks since they had acquired requisite qualifications for that post. On this an argument is sought to be based that those peons with higher qualifications are not interested in their work as peons. We can give no credence to such an argument when Recruitment Rules themselves prescribe that post of a clerk can be a promotional post for a peon having requisite qualification. There is nothing wrong if a peon sends in his request for being considered to be promoted as a clerk."
7. He also placed reliance upon the judgment of the Supreme Court in Bibhudatta Mohanty v. Union of India and others reported in (2002) 4 SACC 16. In paragraph 12, it was observed as follows:-
"12. Admittedly, in the requisition sent by Respondent 4 to the employment exchange, candidates having VIIIth-class-passed qualification were called for consideration and accordingly the employment exchange sponsored as many as 40 candidates, all VIIIth class-passed. It is true that the guidelines contained in the "Method of Recruitment" mentions that the minimum educational qualification is VIIIth-passed and preference will be given to SSC-passed. But the requisition did not specify that preference would be given to SSC-passed candidates. Had the fourth respondent notified this condition, perhaps the employment exchange would have also sponsored SSC-passed candidates as well. As the basis of selection was in terms of requisition to the employment exchange, the selection authority has committed no illegality in not giving preference to SSC-passed candidate- Respondent 5. However,the preference clause for higher qualification does not mean that irrespective of fulfilment of other norms SSC-passed have to be preferred. Where any rule or guideline provides preference in respect of some higher qualification, it only means that all other requirements being equal, a person possessing higher educational qualification will be preferred. It cannot,however, be considered as the sole criterion for preference in selection and appointment."
8. The learned counsel also placed reliance upon the judgment of the Supreme Court in State of Haryana and another v. Abdul Gaffar Khan and another reported in (2006) 11 SCC 153 and placed reliance upon paragraph 7, which is as follows:-
"7. We have perused the order passed by the High Court. As rightly pointed out by the High Court and as per the Haryana Ayurvedic/Homeopathic and Unani Technical Group (C) Service Rules, 1997, they do not expressly exclude the degree in Unani Medicine and Surgery for the post of Unani Dispenser. Admittedly, the respective contesting respondents in these appeals possess the required qualifications from a recognised University/Institution or Board and are thus, in our opinion, eligible for appointment to the post of Unani Dispenser. A close scrutiny of the advertisement issued does not anywhere stipulate the diploma as the required qualification. We, therefore, affirm the order passed by the High Court and direct the appellant State of Haryana to appoint the respective respondents to the posts of Unani Dispenser within a period of one month from the date of receipt of the order from this Court or on production of the same by the respective respondents herein, whichever is earlier. The appeals are accordingly dismissed."
9. In the light of the above, the learned counsel for the petitioner submitted that the petitioner is also having the necessary qualification for the post of Assessor Grade II and his client did not mind doing that work since in these days of unemployment any job is better to get rather than starve oneself. Therefore, his case ought to have been considered. Reliance placed upon the judgments of the Supreme Court has no relevance as it relates to an employee from Technical side opting to go on the ministerial side without any Regulations in their favour. Such is not the case in the present circumstances. On the other hand, the petitioner's possession of a Diploma in Pharmacy cannot be a disqualification. He did not apply for any post commensurate with the Diploma, on the contrary he wanted his name to be considered for the post of Assessor on the basis of his SSLC and Higher Secondary Certificate and he was also not claiming any preference. But, he also stated that he should be considered in the category of SC.
10. Under the circumstances, the claim made by the petitioner cannot be rejected by the respondents. Therefore, the respondents are directed to conduct an interview for the petitioner for the post of Assessor Grade II and pass appropriate orders. In case he is qualified, he should be given an appointment order accordingly. He should be considered under the SC quota. This exercise shall be carried out within a period of four weeks from the date of receipt of the order and the result shall be communicated to the petitioner.
11. The writ petition is allowed to the extent indicated above. No costs. Consequently, connected miscellaneous petition is closed.
svki To
1.The Chief Engineer, Tamil Nadu Electricity Board, Hold office at Anna Salai, Chennai 600 002.
2.Recruitment Officer for T.N.E.B.Assessor Post, T.N.E.B, Anna Salai, Chennai 600 002.
3.The Superintending Engineer, Vellore Electricity Distribution Circle, Vellore