Full order of THE HON’BLE MR. JUSTICE D.KRISHNAKUMAR W.P.Nos.16330, 16784, 16336, 16334, 16466, 16339, 16342, 16345, 16351, 16785, 16349, 16479, 16793, 16471, 16352, 16464, 16790, 17451, 17464, 17467 and 17477 of 2022 of 2022 and WMP.Nos.16095, 15658, 15661, 15744, 15747, 15664, 15667, 15660, 15753, 15653, 15669, 15655, 15659, 15761, 16094, 16099, 16100, 16751, 16768, 16770 and 16777 of 2022 W.P.No.16330 of 2022 J.Kalaichelvi                                                            ..           Petitioner vs. 1.The Chairman & Managing Diretor,    Tamil Nadu Electricity Generation &      Distribution Corporation,     For Petitioners            : Mr.A.E.Chelliah, Senior Counsel           in all W.Ps.                                        for Mrs.C.Vasanthakumari Chelliah                 For Respondents                    : Mr.P.S.Raman, Senior Counsel           in all W.Ps.                                    For Mr.P.Subramanian,                                                   Standing Counsel for TNEB  

IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON:  11.07.2022

                                    DELIVERED ON: 06.09.2022                   

CORAM:

THE HON’BLE MR. JUSTICE D.KRISHNAKUMAR

W.P.Nos.16330, 16784, 16336, 16334, 16466, 16339, 16342, 16345, 16351, 16785, 16349, 16479, 16793, 16471, 16352, 16464, 16790, 17451, 17464, 17467 and 17477 of 2022 of 2022

and

WMP.Nos.16095, 15658, 15661, 15744, 15747, 15664, 15667, 15660, 15753, 15653, 15669, 15655, 15659, 15761, 16094, 16099, 16100, 16751, 16768, 16770 and 16777 of 2022

 

W.P.No.16330 of 2022

 

J.Kalaichelvi                                                            ..           Petitioner

vs.

1.The Chairman & Managing Diretor,

Tamil Nadu Electricity Generation &

Distribution Corporation,

Chennai-600 002.

 

2.The Chief Engineer (Personnel),

Tamizh Nadu Electricity Generation &

Distribution Corporation,

Chennai-600 002.                                           ..        Respondents

 

Common Prayer : Writ Petitions filed under Article 226 of the Constitution of India praying for issuance of a Writ of Mandamus directing the respondents to appoint the petitioner as Field Assistant (Trainee) in pursuant to the results published based on the Notification No.1 of 2016 dated 28.02.2016 and as officially there are 2900 vacancies as per the Notification No.05/2020 dated 19.03.2020.

 

 

          For Petitioners            : Mr.A.E.Chelliah, Senior Counsel

in all W.Ps.                                        for Mrs.C.Vasanthakumari Chelliah

 

For Respondents                    : Mr.P.S.Raman, Senior Counsel

in all W.Ps.                                    For Mr.P.Subramanian,

Standing Counsel for TNEB

 

COMMON ORDER

The issue involved in these writ petitions are one and the same and therefore, they are disposed of by this common order.   These writ petitions have been filed praying for a Mandamus directing the respondents to appoint the petitioner as Field Assistant (Trainee) in pursuant to the results published, based on Notification No.1 of 2016 dated 28.02.2016 and as officially there are 2900 vacancies as per the Notification No.05/2020 dated 19.03.2020.

 

  1. Heard the learned counsel for the parties.

 

  1. The case of the petitioners is that they are fully qualified for the post of Field Assistant (Trainee) under the respondents and the basic qualification required is a Trade Certificate obtained from ITI- Electrician and Wireman Course. The petitioners were successful in the examination conducted by respondent Board based on their Notification No.01/2016 dated 28.02.2016 and among 3170 persons, who participated in the written and oral examinations, only 900 persons were appointed and remaining persons like the petitioners, who are fully qualified, are yet to be appointed.

 

  1. Subsequently, the respondents issued another Notification No.2/2010 dated 19.03.2020 notifying 2900 vacancies of Field Assistants, but due to pandemic it could not take place. The respondents issued Proceedings No.56 dated 19.03.2020 for filing up of 5000 new posts of Gangman for which 90124 persons applied and 15106 passed and by increasing the vacancies from 5000 to 10000, 9613 persons out of 15106 were selected.  According to the petitioners, there are about 36000 vacancies throughout the State of Tamil Nadu and without Field Assistants, setting right power breakdowns as well as maintenance work is practically impossible and not only public suffers at large, but there are lot of fatal accidents and the Gangmen have nothing to do with electricity except erection of poles and carrying the wires before the system comes into operation.

 

 

  1. According to the petitioners, Notification for filling up of 2900 posts of Field Assistants was issued in the year 2020 and it could not be pursued and in view of insufficient strength of Field Assistants, Gangman are engaged to carryout the repairs or attend to the faults when there is power breakdown and fatal accidents occurred and therefore, when only 900 were appointed among 3170 persons, who were successful both in the written and oral examination in 2016 as Field Assistant, at least remaining 2270 persons can be appointed now.

 

  1. It is also stated by the petitioners that in the year 2020 Notification, the respondents have called for filling up of 2900 vacancies of Field Assistants, but no progress made in the said selection pursuant to the said notification and Gangmen, being employed are retired employees, nearly 25 have met with electrical accidents during their work and therefore, it is the need of the hour that these vacancies are to be filled up by processing the said selection notification issued by the respondent and also seeks that these petitioners are fully qualified for the said posts and therefore, the respondents may consider them for selection to the post of Field Assistants.

 

 

  1. The learned Senior Counsel appearing for the petitioners submitted that the respondents Board has to take earnest steps to appoint the petitioners in the post of Field Assistants to avoid further engagement of Gangmen being utilised beyond their works such as maintenance works, extension works, Transmission circles etc., and they are forced to work for more than 12 hours without any weekly off and if these additional works are assigned to these Gangmen, it would result in loss of lives, since they are not having expertise in the said field and therefore, the respondents ought to have taken all steps to select the petitioners who have qualified in the examinations conducted in the year 2016 and without doing so, the respondents have proceeded with the subsequent notification in the year 2020 for filling up 2900 vacancies of Field Assistants and therefore, the petitioners have filed the present writ petitions.

 

  1. Mr.P.S.Raman, learned Senior Counsel for the respondents has drawn the attention of this Court to the report of the Senior Personnel Officer / Recruitment cell of the respondent Board wherein it has been stated that orders were issued in (Per.) (FB) TANGEDCO Proceedings No.10 dated 10.12.2015 for filling up certain number of vacancies in various posts including 900 vacancies in the posts of Field Assistant (Trainee) by Direct Recruitment and based on that Notification No.1/2016 dated 28.02.2016 was issued inviting applications from eligible candidates from open market and also from apprenticeship candidates through online for appearing in the competitive written examination for the post of Field Assistant. Several applicants have submitted their applications to the respondent Board and 900 vacancies were notified as per the Notification and after following all the guidelines and procedures, list of selected candidates were published and they have joined duty.  It is further stated that in order to carryout the miscellaneous Non-Technical works such as Digging of Pits and Erection of Poles etc., along with qualified individuals and the supervisory authorities, it has been decided to create a new post in the Nomenclature of Gangman and accordingly, a Committee was constituted and based on the report of the Committee, a proposal was placed before the Full Board of TANGEDCO for approval for creation of new post of Gangman, wherein orders have been issued on 02.03.2019 and 06.03.2019 and in the said proceedings, the work nature of Gangman is prescribed as follows:

(a) Digging of holes for erection of poles.

(b) Transportation of poles physically

 

(c) Stringing and erection of poles and conductors under the supervising authority.

 

(d) To carryout miscellaneous works as directed by the Section Officer / Supervisory Authority.

 

  1. According to the respondents, the nature of work of Field Assistant and Gangmen are entirely different and further the selection process of Notification for Direct Recruitment of Field Assistant No.1/2016 dated 28.02.2016 was completed and the list of selected candidates was published in the year 2017 itself and the selected candidates have also joined duty and at this distant point of time, the request of the petitioners could not be considered.

 

  1. As directed by this Court, the second respondent has filed an additional report dated 11.07.2022, in compliance of the directions issued by this Court on 06.07.2022, informing the time limit required to fill up the permanent vacancies and on the feasibility of making appointment on temporary basis till permanent posts are filled up. According to the respondents, as regards Filed Assistants there are 29,050 sanctioned post and 5,032 men are working as of now and as regards Gangman already 9613 posts were filled during the year 2021 and the recruitment process of all Government Corporations and Boards is now statutorily vests with the Tamil Nadu Public Service Commission, by virtue of Tamil Nadu Public Service Commission (Additional Functions) Act, 2022 (Tamil Nadu Act No.14 of 2022) and the said Act was enacted for filling up of vacancies in the State owned Public Sector Undertaking, State Corporation, or a Statutory Board or Authority under the control of the Government through Tamil Nadu Public Service Commission and as per the above, the proposal was submitted to the Board seeking approval to fill up 8000 vacancies in the post of Field Assistant and its under process to seek the approval of the Government.

 

  1. In the light of the above affidavit filed by the respondents, the learned Senior Counsel for the respondents submitted that now the recruitment is taking place through TNPSC and therefore, the prayer sought for by the petitioners cannot be granted and in view of the Tamil Nadu Act No.14 of 2022, TNPSC is the competent authority to fill up the posts and the respondents are taking steps to fill up these vacancies and the post of Gangman is no way connected with the recruitment of Field Assistants and as per the earlier Notification No.01/2016 dated 28.02.2016, the selection process was completed and the list of selected candidates was published in the year 2017 itself and in view of the TNPSC (Additional Functions) Act, 2022, the power to recruit is vested with TNPSC.  Further, vide Notification dated 05/2020 dated 19.03.2020, 2900 vacancies were called for but due to pandemic, the selection process could not proceed.  Therefore, in the light of the Amendment Act, coming into force, the respondents Board has to address the Government for filling the post of Field Assistants as per the vacancies available and therefore, the claim of the petitioners cannot be considered by the respondents Board for appointing these petitioners as Field Assistants.

 

  1. It is informed by the respondents in the additional report that the Government of Tamil Nadu, which is owning TANGEDCO, has issued orders in G.O.Ms.No.94, Finance (BPE) Department dated 30.03.2022, inter alia that prior approval of the Government is necessary for creation of new posts in all Government companies as per the instructions already issued and for recruitment of more than 25 persons in any category of posts in case of Government companies which are incurring loss and which are dependent on Government fundings for their operations and for the said reasons, TAGEDCO is not in a position to inform a definite time limit to fill up permanent vacancies.  It is further informed in the additional report that as far as appointment on temporary basis until filing up of permanent posts are concerned, TANGEDCO has empowered various levels of officers including Works Contract through tender process and further, in execution of major/voluminous works that have to be carried in a short span of time, the officers are empowered from time to time to avail mechanized instruments for carrying out the works in time.

 

  1. Taking note of the nature of working required at the field level, namely maintenance and extension works, transmission circles and report has been filed stating that Gangmen are engaged in these additional works. At present, it is alarming that posts of Field Assistants are not filled up for the past 6 years and as per reports, nearly 5000 staffs alone are working in the said posts in the entire State of Tamil Nadu.  In view of non filling the posts of Field Assistants, retired Gangmen, are engaged for the aforesaid works, even though there is a specific instructions from the Board that their services shall not be utilized for the aforesaid works.

 

 

  1. On a perusal of the materials placed by the petitioners in the typed set of documents, it is very unfortunate to note that about 8 Gangmen trainees were electrocuted across the State since March 2021.  Over 25 trainees have met with electrical accidents during work so far. With severe shortage of manpower at field level, TANGEDCO officials are forced to engage Gangman in non-electrical work like digging, installation of poles, laying power cables and climbing poles to attend to work on electrical installation without supervision. Most of the time accidents happen because of negligence and further Gangman trainees are recruited to attend to all the field level electrical works. Statistics shows that there are over 30,000 vacancies at the field level in the field assistants (as per news daily “Dinathanthi English” dated 11.10.2021) and wireman category and therefore, TANGEDCO should take immediate steps to fill up the field level vacancies to attend to consumer complaints and maintenance works.  In most cases of electrocution and accidents, involving Gangman trainees, it happened mainly due to non-adherence to safety precautions like ensuring no power supply before attending the fault.  On account of shortage of manpower, the respondents have to seek for alternative sources for carrying out these technical works executed by Field Assistants and in view of the shortage of manpower, not only the respondent Board, but also the public suffer at large in execution of works by engaging untrained / unskilled workers in technical works, resulting in loss of lives.

 

  1. This Court came to know from a recent news article that at present, the maintenance plans of the Tamil Nadu Generation and Distribution Company (TANGEDCO) have taken a hit following an acute shortage of staff and materials. The Tamil Nadu power utility was planning to carry out maintenance work before July 15, 2022 but the acute shortage of staff has hit its plans. TANGEDCO had planned to change damaged electric poles and take up clearing and trimming of around 80,000 trees across the state. According to sources in the power utility, 27,000 damaged poles needed to be replaced.  Another factor affecting the maintenance work of TANGEDCO is shortage of materials. The power utility has already allocated Rs.10 lakh for each division to conduct maintenance work under the concerned division offices. It may be noted that the Hon’ble Minister for Electricity had instructed the chief engineers and superintending engineers to carry out the maintenance work. This came after several complaints were received from the public and social organisations about poor maintenance of electric poles, generators, and even substations.  Sources in the TANGEDCO informs that there is a shortage of around 25,000 staff in the power utility and this has taken a toll on many maintenance works and routine projects of the organisation which provides power to the people of the state.

 

  1. Taking serious note of the fact that large number of unfilled vacancies in the State of Tamil Nadu in the posts of Field Assistants / Wireman, not only causes enormous hardship to the respondents Board to attend to electrical installations and maintenance works, but also the public at large, this Court is of the view that it is high time for the respondents Board to initiate steps to fill up these vacancies by including them under priority category.

 

  1. Now coming to the claim of the petitioners for appointment is concerned, it is relevant to refer to the decision of the Hon’ble Supreme Court in Kulwinder Pal Singh and another v. State of Punjab and Others [(2016) 6 SCC 532] wherein it was observed as under:

“10. It is fairly well settled that merely because the name of a candidate finds place in the select list, it would not give him indefeasible right to get an appointment as well. The name of a candidate may appear in the merit list but he has no indefeasible right to an appointment (vide Food Corporation of India v Bhanu Lodh [Food Corporation of India v. Bhanu Lodh, (2005) 3 SCC 618 : 2005 SCC (L&S) 433] , All India SC & ST Employees’ Assn. v. A. Arthur Jeen [All India SC & ST Employees’ Assn. v. A. Arthur Jeen, (2001) 6 SCC 380 : (2007) 2 SCC (L&S) 362] and UPSC v. Gaurav Dwivedi [UPSC v. Gaurav Dwivedi, (1999) 5 SCC 180 : 1999 SCC (L&S) 982] .

 

  1. This Court again in State of Orissa v. Rajkishore Nanda [State of Orissa v. Rajkishore Nanda, (2010) 6 SCC 777 : (2010) 2 SCC (L&S) 313] , held as under : (SCC p. 783, paras 14 & 16)

14. A person whose name appears in the select list does not acquire any indefeasible right of appointment. Empanelment at best is a condition of eligibility for the purpose of appointment and by itself does not amount to selection or create a vested right to be appointed. The vacancies have to be filled up as per the statutory rules and in conformity with the constitutional mandate.

***

16.A select list cannot be treated as a reservoir for the purpose of appointments, that vacancy can be filled up taking the names from that list as and when it is so required.”

 

  1. In Manoj Manu v. Union of India [Manoj Manu v. Union of India, (2013) 12 SCC 171 : (2014) 2 SCC (L&S) 706], it was held that (SCC p. 176, para 10) merely because the name of a candidate finds place in the select list, it would not give the candidate an indefeasible right to get an appointment as well. It is always open to the Government not to fill up the vacancies, however such decision should not be arbitrary or unreasonable. Once the decision is found to be based on some valid reason, the Court would not issue any mandamus to the Government to fill up the vacancies. As noticed earlier, because twenty-two other candidates were declared successful by the Supreme Court pertaining to the selection of the years 1998, 1999, 2000 and 2001 as Civil Judges (Junior Division), they were to be accommodated, as rightly resolved by the Administrative Committee in the meeting dated 6-7-2011. The three resultant vacancies of the year 2007-2008 stood consumed with the joining of the said seventeen candidates and the same could not be filled up from the select list of that year. The decision of the Administrative Committee observing that the three resultant vacancies stood consumed is based on factual situation arising there and cannot be said to be arbitrary.”

 

In the light of the principles laid down in the aferesaid decision, the petitioners are not entitled to claim appointment as a matter of right.  However, taking into consideration the shortage of manpower, it is always open to the respondents to fill up these vacancies by considering the petitioners, who have already appeared for selection process, as an interim measure, if it is permissible under Boards Rules and Regulations, till regular appointments are made by TNPSC.

 

  1. In the light of the above discussions and taking into consideration the submission of the learned counsel for the parties, this Court is inclined to pass the following order: :

(i) The State Government as well as TNPSC, based on the proposal submitted by TANGEDCO, shall ensure to take necessary steps to fill up these vacancies in the post of Field Assistants and Wireman as expeditiously as possible, without any further delay.

 

(ii) Till such time, the respondents Board shall make necessary interim arrangement to engage qualified and skilled persons on temporary basis or on any other mode as prescribed under Board Rules and Regulations, without they seeking for permanent absorption, till the recruitment of permanent vacancies in the post of Field Assistants are filled up by TNPSC.

 

(iii) The respondents shall issue necessary instructions to their officers concerned to ensure strict compliance of the Board’s Standing Order No.22 of 2013, which specifically indicates that Gangmen should not be deputed for Field Assistant Works.

 

  1. These writ petitions stand disposed of with the above directions. No costs. Consequently, connected miscellaneous petitions are closed.

 

 

 

06.09.2022

 

Index           : Yes / No

Internet        : Yes / No

Jvm

 

 

 

 

 

To

1.The Chairman & Managing Director,

Tamil Nadu Electricity Generation &

Distribution Corporation, Chennai-600 002.

 

2.The Chief Engineer (Personnel),

Tamizh Nadu Electricity Generation &

Distribution Corporation, Chennai-600 002.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

D.KRISHNAKUMAR. J

 

Jvm

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Common Order in

W.P.Nos.16330, 16784, 16336, 16334, 16466, 16339,

16342, 16345, 16351, 16785, 16349, 16479,

16793, 16471, 16352, 16464, 16790, 17451,

17464, 17467 and 17477 of 2022 of 2022

 

 

 

 

 

 

 

 

 

 

 

 

06.09.2022

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