D. Sasidharan v. Kerala State Electricity Board Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **THURSDAY, THE 21ST DAY OF DECEMBER 2017/30TH AGRAHAYANA, 1939** ## **WP(C).NO. 29610 OF 2017 (A)** **--------------------------------------** **PETITIONER:** - **------------------** ## **D.SASIDHARAN,** **AGED 56 YEARS, S/O.DAMODHARAN NADAR (LATE), RETIRED DRIVER, PET SUB DIVISION, PARUTHYPPARA, PATTOM PALACE, TVM-04 RESIDING AT NANDANAM, KUTTITHANNI, NELLIMOODU P.O., THIRUVANANTHAPURAM-695 524.** **BY ADVS.SRI.J.JULIAN XAVIER SRI.FIROZ K.ROBIN** **RESPONDENTS:** ## **----------------------** **1. KERALA STATE ELECTRICITY BOARD LIMITED, REPRESENTED BY ITS SECRETARY, VYDHUTHI BHAVANAM, PATTOM P.O., THIRUVANANTHAPURAM-695 004.** **2. MEMBER SECRETARY, KERALA STATE ELECTRICITY BOARD, VYDHUTHI BHAVANAM, PATTOM P.O., THIRUVANANTHAPURAM-695 004.** **3. THE CHIEF ENGINEER (HRM), KERALA STATE ELECTRICITY BOARD LIMITED, VYDHUTHI BHAVANAM, PATTOM P.O., THIRUVANANTHAPURAM-695 004.** **4. THE DEPUTY CHIEF ENGINEER, KERALA STATE ELECTRICITY BOARD LIMITED, SYSTEM OPERATION CIRCLE, THIRUVANANTHAPURAM-695 004.** **BY ADVS. SRI.M.K.THANKAPPAN, SC SMT.ANEETHA A.G.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21-12-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **AS** ## **WP(C).NO. 29610 OF 2017 (A)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** - **EXHIBIT P1TRUE COPY OF THE RELEVANT PAGES OF LONG TERM SETTLEMENT 1995.** - **EXHIBIT P2TRUE COPY OF THE RELEVANT PAGES OF LONG TERM SETTLEMENT 2000.** - **EXHIBIT P3COPY OF THE RELEVANT PAGES OF LONG TERM SETTLEMENT 2007.** - **EXHIBIT P4TRUE COPY OF THE RELEVANT PAGES OF GRADATION LIST OF THE DRIVER SPECIAL GRADE-II.** - **EXHIBIT P5TRUE C0PY OF THE PROCEEDINGS ISSUED BY THE 3RD RESPONDENT DATED 14/05/2015.** - **EXHIBIT P6TRUE COPY OF THE REPRESENTATION DATED 11/05/2017 SUBMITTED BEFORE THE 3RD RESPONDENT.** - **EXHIBIT P7TRUE C0PY OF THE JUDGMENT DATED 23/05/2017 IN W.P(C)NO.16768/2017.** - **EXHIBIT P8TRUE COPY OF THE REPRESENTATION DATED 26/05/2017 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.** - **EXHIBIT P9TRUE COPY OF THE ORDER DATED 04/07/2017 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P10TRUE COPY OF THE ORDER DATED 23/01/2009 GRANTING RATIO PROMOTION TO THE CADRE OF SPECIAL GRADE DRIVER-I ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P11COPY OF THE ORDER DATED 21/01/2014 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P12COPY OF THE ORDER DATED 14/05/2014 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P13TRUE COPY OF THE APPEAL DATED 13/07/2017. EXHIBIT P14TRUE COPY OF THE INFORMATION SOUGHT UNDER RTI ACT DATED 09.05.2017.** - **EXHIBIT P15TRUE COPY OF THE REPLY DATED 22.06.2017.** **EXHIBIT P16THE DETAILS COLLECTED BY THE PETITIONER REGARDING THE DRIVERS IN DIFFERENT GRADES UNDER THE KSEB WITH EMPLOYEES CODE AND OTHER DETAILS.** **CONT...** **WP(C).NO. 29610 OF 2017 (A)** ## **RESPONDENTS' EXHIBITS:** **EXHIBIT R3(a)TRUE COPY OF THE GRADATION LIST OF DRIVERS PUBLISHED ON 15.11.2007 BY THE RESPONDENTS. EXHIBIT R3(b)TRUE COPY OF THE GRADATION LIST OF DRIVERS PUBLISHED ON 20.10.2015 BY THE RESPONDENTS. EXHIBIT R3(c)TRUE COPY OF THE DETAILS OF DRIVERS WORKING IN DRIVER SPECIAL GRADE-I AS ON 01.04.2016. EXHIBIT R3(d)TRUE COPY OF THE DETAILS OF DRIVERS WORKING IN DRIVER SPECIAL GRADE-II AS ON 01.04.2016. EXHIBIT R3(e)TRUE COPY OF THE DETAILS OF DRIVERS WORKING IN DRIVER GRADE-I AS ON 01.04.2016. EXHIBIT R3(f)TRUE COPY OF THE DETAILS OF DRIVERS WORKING IN DRIVER GRADE-II AS ON 01.04.2016.** **/TRUE COPY/ P.A. TO JUDGE** **AS** ## **P.V.ASHA J.** ## **------------------------------------** ## **W.P.(C).No.29610 of 2017** **-------------------------------------** Dated this the 21[st] day of December, 2017 ## **J U D G M E N T** Petitioner retired from service while working as Driver Special Grade-II, on 31.05.2017. Since the petitioner was due for promotion as Driver Special GradeI, he had submitted Ext.P6 application before the 3[rd] respondent on 11.05.2017 requesting to grant him promotion. He thereafter approached this Court in W.P. (C).No.16768 of 2017 and by Ext.P7 judgment dated 23.05.2017 this Court directed the third respondent to consider his request and to pass orders, after affording him an opportunity of hearing. Petitioner had submitted a supplementary representation Ext.P8. Thereafter, by Ext.P9 order, the 3[rd] respondent-the Chief Engineer (HRM) rejected the representation, stating that the provision for reviewing ratio promotions as on the 1[st] day of April every year, which was available in the 2000 settlement was not incorporated in the Long Term Settlement 2007, from 01.08.2003 onwards, and therefore, the claim of petitioner for review of promotion would not stand in the eye of law. W.P.(C).No.29610 of 2017 2 Referring to the judgments in **State of Orissa v. Durga Charan Dass** [AIR 1966 SC 1547 : 1996 (2) SCR 907, AIR 1974 SC 259 : 1974 (1) SCC 317 : 1974 (1) SLR 470], **Dwaraka Prasad v. Union of India** [2003 (6) SCC 535 : AIR 2003 SC 2971 :2003 (5) SLR 153] and **T.N. Electricity Board v. T.N. Electricity Board Thozhillair Aykkiya Sangam** [2008 (3) SCC 359 : 2008 (2) SLR 809], the third respondent found that petitioner does not have any right to claim promotion and it is the prerogative of the employer to decide as to what should be the channel of promotion for technical and for non technical persons. It was stated: “The employer having decided on rational basis that the channel of promotion of technical persons would be on the technical side and not on the administrative side, no interference was called for.” 2. Petitioner had only requested for granting the promotion which is due to him in accordance with the Long Term Settlement. Clause D under Article 7 of Ext.P1 Long Term Settlement, 1995, provided the following: “the existing ratio for promotion for Drivers will be revised. The revised ratio of 2:1:1:1 will be maintained among Driver Grade II, Driver Grade I, Special Grade Driver II and Special Grade Driver I. All W.P.(C).No.29610 of 2017 3 the existing Tractor Drivers will be placed under the scale of Special Grade Driver II.” 3. Thereafter, when the Long Term Settlement 2000 (Ext.P2) came into force, Clause 24 provided: “The existing ratio promotions of various categories will be reviewed as on the 1[st] April every year.” 4. This was followed in Ext.P3 Long Term Settlement 2007 also, by way of Clause 33, which provided: “All other existing provisions in force will continue.” 5. In Ext.P4 seniority list of the Special Drivers Grade II, issued on 30.09.2016, petitioner was included as Serial No.47. As per Ext.P5 order issued on 14.05.2015, Sl.No.45 in Ext.P4 seniority list of Driver Special Grade II, was granted promotion as Driver Special Grade I. Relying on the long term settlement as well as Exts.P4 and P5 orders, petitioner had submitted his representation on 11.05.2017, requesting for promotion as Driver Special Grade I. He had pointed out that 4 posts of Driver Special Grade I were remaining vacant for the last 1½ years i.e., 1 on account of retirement and 3 on account of death. Apart from that, in Ext.P8 supplementary representation W.P.(C).No.29610 of 2017 4 also he had pointed out the vacancies and requested for promotion with retrospective effect from 01.04.2016. In this representation, he had pointed out that several persons included in the gradation list had already retired from service and that in case such ineligible persons were excluded from the list, he would have been eligible for promotion sufficiently earlier. Ext.P10 order was issued thereafter. The petitioner had filed this 2[nd] writ petition at that stage. 6. Seeing the manner in which Ext.P10 was issued, this Court directed the 3[rd] respondent to file an affidavit as to how Ext.P10 was arrived at. The 3[rd] respondent has filed a counter affidavit on 09.10.2017, stating that as per article VII D of Ext.P1 Long Term Settlement 1995 relating to Drivers, the existing ratio promotion for Driver was revised, introducing the revised ratio of 2:1:1:1 among Driver Grade II, Driver Grade I, Special Grade Driver II and Special Grade Driver I. In Ext.P2 Long Term Settlement, 2000, Article VII C, provided for the ratio. In the subsequent Long Term Settlement, 2007 (Ext.P3) with effect from 01.08.2003, the provision earlier included in Ext.P2 Long Term Settlement 2000 that W.P.(C).No.29610 of 2017 5 “the existing ratio promotions of various categories will be reviewed as on the 1[st] day of April every year” was not incorporated and hence review of promotion as contended by the petitioner will not stand in the eye of law. It was further stated that the working strength in respect of the Driver Special Grade-I was 54, Driver Special Grade-II 63, Driver Grade-I was 62 and Driver Grade-II was 77, with a total strength of 256 and that there were only 54 Drivers Special Grade-I as on 2016 and no one is eligible for promotion to the post of Driver Special Grade-I. Hence, the petitioner's claim that there were 4 vacancies was denied. 7. Petitioner filed a reply affidavit, producing Ext.P16 seniority list, which he collected from the web site, since the Public Information Officer informed him as per Ext.P15 letter that there is no separate gradation list for the Driver Grade-I and that the details regarding the Drivers are available in the official web site. As per Ext.P16 list, the number of Special Grade-I Drivers will come to only 55 and the total number of Drivers is 292. Based on this, the petitioner claimed that there should have been 58 Special Grade-I Drivers in order to satisfy W.P.(C).No.29610 of 2017 6 the ratio of 1:1:1:2. 8. The 3[rd] respondent filed an additional affidavit dated 22.11.2017, stating that there occurred some discrepancies in furnishing the figures in the affidavit already filed on direction from this Court. Exts.R3(a) and R3(b) gradation lists published on 15.11.2007 and 20.10.2015 were produced stating that the number of Drivers were 289 with a break up of 63, 67, 33 and 126 in Spl Gr I, Spl Gr II, Gr I and Gr II respectively, which when apportioned in the ratio of 2:1:1:1 should be 116 for Driver Gr II and 58 for all other grades. 9. But in Ext.R3(b) gradation list the total number of Drivers shown was 342 with the following break up: **==> picture [242 x 71] intentionally omitted <==** 10. Contrary to this 3[rd] respondent, without any explanation, had furnished a total number of 289 with the following break up. **==> picture [257 x 71] intentionally omitted <==** W.P.(C).No.29610 of 2017 **==> picture [7 x 9] intentionally omitted <==** 11. It was further stated that if it is apportioned there would be 58 posts for Special Gr I and petitioner would not be entitled to get promotion since there is an excess of 5 persons in Special Gr.I. 12. As the documents produced and the averments in the affidavit did not tally, the case was again posted and another order was passed directing the 3[rd] respondent to explain the difference in the number of Driver Gr II stated in the corrected version of the affidavit and the documents produced along with it. 13. The 3[rd] respondent has filed an affidavit based on the direction issued on 12.12.2017. As per the latest affidavit number of Drivers are as are follows: |Category|Total| |---|---| |Driver Special Grade-I|63| |Driver Special Grade-II|67| |Driver Grade-I|33| |Driver Grade-II|126| |Total|289| 14. Thus there are 289 Drivers. It is also stated that after deducting the death/retirement/resignation etc., derived from the gradation lists Exts.R3(a) and R3(b) produced along with the affidavit the number of 8 W.P.(C).No.29610 of 2017 Drivers who were working as on 1.4.2016 is 289. The working strength of Driver Special Grade I as on 1.4.2016 is produced as Ext.R3(c) which shows that there are 63 Drivers. It is therefore stated that there was no vacancy available for the petitioner for promotion as on 1.4.2016. The number of Drivers working in Grades I and II are given in Exts.R3(e) and (f), as 33 and 126. 15. Even though, the claim of the petitioner was for promotion from 01.04.2016, the petitioner retired from service only on 31.5.2017. Therefore his eligibility for promotion is liable to be considered as on 01.04.2017 also. The immediate senior of petitioner is the next person to be granted promotion. If there are two vacancies petitioner would get promotion. 16. The learned Standing Counsel on instructions, submitted that between 01.04.2016 and 01.04.2017, 11 persons retired from service from the category of Special Grade I Drivers. Then the total number of Special Grade I Drivers have reduced from 289 to 278. If it is apportioned in the ratio of 1:1:1:2 there should be atleast 55 Special Driver Grade I. The actual number of Drivers would have been only 52. Therefore, there would be W.P.(C).No.29610 of 2017 9 3 vacancies as on 1.4.2017. In the above circumstances the petitioner is entitled to be granted promotion as Special Grade Driver I with effect from 1.4.2017. It is declared that petitioner would be entitled to promotion as Special Driver Grade-I with effect from 01.04.2017. There shall be a direction to the respondents to grant notional promotion to petitioner accordingly and to grant him all consequential benefits after fixing his pay and pension based on that, within a period of 'three months' from the date of receipt of a copy of the judgment. **==> picture [145 x 28] intentionally omitted <==** AS/rkc