## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE SMT. JUSTICE P.V.ASHA**
**FRIDAY, THE 21ST DAY OF AUGUST 2020 / 30TH SRAVANA, 1942**
## **WP(C).No.15427 OF 2012(C)**
## **PETITIONER:**
**ASHA V.DEV., AGED 45 YEARS, ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL SUB DIVISION, RANNY (S), KERALA STATE ELECTRICITY BOARD, RANNY P.O., PATHANAMTHITTA.**
**BY ADVS. SRI.S.P.ARAVINDAKSHAN PILLAY SRI.S.A.ANAND SRI.K.A.BALAN SRI.PETER JOSE CHRISTO SMT.K.N.REMYA SMT.N.SANTHA**
## **RESPONDENT:**
**KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDHYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM, PIN-695004.**
**BY ADVS. SRI.M.K.THANKAPPAN, SC, KSEB SRI.K.S.ANIL, SC, KSEB**
**THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
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## **JUDGMENT**
**The petitioner challenges Ext.P5 order, to the extent it imposed a condition, while granting extension of deputation, that she should re-join as the junior most in the cadre of Assistant Executive Engineer. Petitioner challenges Ext.P6 order also, by which her representation to review that condition was rejected.**
**2. While the petitioner was working as Assistant Engineer the respondent - Kerala State Electricity Board, accorded sanction for her deputation as Assistant Engineer in the Chattisgarh State Electricity Board as per Ext.P1 order dated 21.01.2006 for a period of one year from 23.01.2006. It is stated that the period of deputation was extended from year to year as per orders dated 13.02.2007, 28.01.2008, 20.01.2009, 19.01.2010 and 25.01.2011 on the very same terms and conditions as contained in Ext.P1 order. As per Ext.P3 order dated 08.12.2009, she was promoted as Assistant Executive Engineer (Electrical). It is stated that as post of**
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**Assistant Executive Engineer is not available in Chattisgarh Electricity Board, they changed the deputation post occupied by the petitioner as Executive Engineer, with the permission of the KSEB, as can be seen from Exts.P4 and P2 orders, by which the deputation was extended for a period of one year from 21.01.2011. It is stated that the Chattisgarh State Electricity Board as per letter dated 16.12.2011 again requested the KSEB for extension of deputation of petitioner. Ext.P5 was the order passed by the Board on 17.02.2012 on that request. In Ext.P5, it is stated that after detailed discussion the Full Time Board has decided that extension would be granted for the period up to 31.05.2012 as a last chance and as a special case, subject to the condition that petitioner would have to join as the junior most in the cadre of Assistant Executive Engineer (Electrical) on the date of her joining duty. It was also ordered that no further extension would be granted for**
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## **deputation under any circumstances.**
**3. The petitioner thereupon submitted a representation dated 16.03.2012, which the Board rejected as per Ext.P6 letter stating that while on deputation, the petitioner has not worked a single day in the KSEB in the cadre of Assistant Executive Engineer (Electrical) and she was working in the cadre of Executive Engineer (Electrical) in Chattisgarh Electricity Board and her service in a different post can not be construed as Assistant Executive Engineer (Electrical) in the Board and she has to complete the mandatory minimum one year duty out of a continuous period of two years as Assistant Executive Engineer in KSEB. The decision of the Full Board was stated to be correct and petitioner's request to review the decision was rejected. The Writ Petition was filed at that stage. It is stated that petitioner rejoined duty on 02.06.2012.**
**4. According to the petitioner, the condition**
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**stipulated in Ext.P5 and rejection of her representation, are illegal as the seniority is governed by Rules 27(a) of KS&SSR. She stated that Rule 140(a) of Part I, KSR which governs deputation, does not permit the Board to stipulate such a condition.**
**5. The 1[st] respondent has filed a counter affidavit in tune with the contents of Ext.P6 order. It was stated that she has not worked even a single day in the KSEB on her promotion as Assistant Executive Engineer and that she was working as Executive Engineer in the Chattisgarh Electricity Board. It is also stated that she was on deputation for more than 6 years and she had not put in her services in the post of Assistant Executive Engineer on her promotion. The respondents relied on Rule 143 of Part I, KSR stating that on completion of deputation, the petitioner has to rejoin the very same post from which the deputation was granted.**
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**6. Even though the learned Standing Counsel vehemently contended that the condition fixed in Ext.P5 is perfectly in order, the learned counsel for the petitioner made available a copy of the order passed by the Deputy Chief Engineer on 13.02.2019 declaring satisfactory completion of her probation in the cadre of Assistant Executive Engineer with effect from 08.12.2010. The reason stated for stipulating the condition in Ext.P5 was that her probation cannot be declared unless she work in KSEB for the requisite period. Once the respondents themselves declared her probation, the very basis of the said objection ceased to exist.**
**7. Only ground stated in Exts.P5 and P6 as well as in the counter affidavit, is that petitioner has not worked even a single day after her promotion as Assistant Executive Engineer so as to declare her probation. When it is seen that petitioner's probation has already been declared**
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**with effect from 08.12.2010, I do not think it necessary to consider those contentions. The respondents do not have a case that while they continued to grant extension of deputation by orders issued prior to Ext.P5, they have informed either the petitioner or the borrowing authority that no further deputation would be granted. They have not also requested the borrowing authority to relieve her or directed the petitioner to join duty. Without taking any such action it is not fair, just or lawful on the part of respondents to impose such conditions which the rules do not provide.**
**8. Rule 140(a), which provides for transfer to foreign services of Officers, does not provide for a provision that the deputation can be granted subject to loss of seniority.**
**9. The respondent has filed an additional counter affidavit relying on the judgment in** _**Yesodhari Devi M.G. v. State of Kerala and Others**_
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**[2007 (3) KHC 449]. But it is seen that the issue, which arose for consideration therein was in**
**respect of Rule 5 of Appendix XIIA of KSR, which relates to the conditions on availing Leave Without Allowance for employment abroad or to join spouse abroad. That will not apply to the facts and circumstances of the present case. In the above circumstances, I find that there is no basis for stipulating such condition in Ext.P5 that she has to join as junior most.**
**Accordingly, Ext.P5 order to the extent it imposes the condition that petitioner has to rejoin as the junior most Assistant Executive Engineer and Ext.P6 order rejecting the representation of petitioner, shall stand set aside.**
**Accordingly, the writ petition is allowed.**
**Sd/-**
**P.V.ASHA JUDGE**
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## **APPENDIX**
## **PETITIONER'S EXHIBITS:**
**EXHIBIT P1 TRUE COPY OF THE BOARD ORDER (CM) NO.174/2006 (ESTT.IV/6195/2006) DATED 21/01/2006. EXHIBIT P2 TRUE COPY OF THE BO (CM) NO.285/2011 (ESTT. IV/6195/2005) DATED 25/01/2011.**
**EXHIBIT P3 TRUE COPY OF THE ORDER NO.EB1/AE(E)AEE(E)/PRO/DEGREE/2009 DATED 08/12/2009 OF THE CHIEF ENGINEER OF KSEB.**
**EXHIBIT P4 TRUE COPY OF THE LETTER NO.ESTT. IV/6195/2005 DATED 28/06/2010 OF THE RESPONDENT. EXHIBIT P5 TRUE COPY OF THE BOARD ORDER (FB) NO.386/2012 (ESTT.IV/6195/2005) DATED 17/02/2012. EXHIBIT P6 TRUE COPY OF THE LETTER NO.ESTT. IV/6195/2005/60 DATED 07/06/2012 OF THE RESPONDENT.**
**RESPONDENT'S EXHIBITS: EXHIBIT R1(A) TRUE COPY OF THE INCUMBENCY DETAILS OF THE PETITIONER. EXHIBIT R1(B) TRUE COPY OF THE ORDER NO.(CMD) NO. 837/2020(ESTT.1V/3409/2014) DATED 04.06.2020.**
