D. Vishnu Nampoothiri v. Kerala State Electricity Board

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **WEDNESDAY, THE 8TH DAY OF FEBRUARY 2017/19TH MAGHA, 1938** **WP(C).No. 13862 of 2014 (G)** **----------------------------** ## **PETITIONER(S): -------------** **D.VISHNU NAMPOOTHIRI, ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL SUB DIVISION, THENGANA, CHANGANASSERY, KOTTAYAM DISTRICT.** **BY ADVS.SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.K.A.BALAN SRI.PETER JOSE CHRISTO SRI.S.A.ANAND SMT.L.AMMU PILLAI** ## **RESPONDENT(S):** **--------------** **1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVANAM PATTOM, THIRUVANANTHAPURAM, PIN-695 004.** **2. THE CHAIRMAN, KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVANAM PATTOM, THIRUVANANTHAPURAM, PIN-695 004.** **3. THE CHIEF ENGINEER (HRM), KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVANAM PATTOM, THIRUVANANTHAPURAM, PIN-695 004.** **4. SENIOR ACCOUNTS OFFICER (AUDIT), KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVANAM PATTOM, THIRUVANANTHAPURAM, PIN-695 004.** **R1 -R4 BY ADVS.SMT.ANEETHA A.G., SC, KSEB SRI.K.S.ANIL, SC, KSEB** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31.01.2017, THE COURT ON 08.02.2017 DELIVERED THE FOLLOWING:** **EL** **WP(C).No. 13862 of 2014 (G)** ## **----------------------------** ||**APPENDIX**| |---|---| |**PETITIONER(S)' EXHIBITS**|| |**-----------------------**|| |**EXT.P1 -**|**TRUE COPY OF THE ORDER NO.EBI(A)158/96 DATED 08-11-1996**| ||**OF THE 3RD RESPONDENT**| |**EXT.P2-**|**TRUE COPY OF THE ORDER NO.EBI(A)158/2000/10% QUOTA/31**| ||**DATED 07-07-2000 OF THE CHIEF ENGINEER (HRM)**| |**EXT.P3 -**|**TRUE COPY OF THE ORDER NO.EB/GR.3/CADRE STRENGTH/03**| ||**DATED 27-11-2004 OF THE 3RD RESPONDENT.**| |**EXT.P3(A) - TRUE COPY OF THE RELEVANT EXTRACT OF THE APPENDED**|| ||**SENIORITY LIST OF ASSISTANT ENGINEERS (ELE)**| |**EXT.P4 -**|**TRUE COPY OF THE ORDER NO.EBI/5/2006-07/1993 DATED 13-**| ||**12-2006 OF THE EXECUTIVE ENGINEER, ELECTRICAL DIVISION,**| ||**THIRUVALLA.**| |**EXT.P5 -**|**TRUE COPY OF THE PREFACE TO THE SECOND REPRINT(2003) OF**| ||**THE INDIAN RAILWAY ESTABLISHMENT CODE VOL.I**| |**EXT.P6 -**|**TRUE COPY OF THE BOARD ORDER NO.2119/96(SC/LTS/CON/95**| ||**DATED 09-09-1996**| |**EXT.P7 -**|**TRUE COPY OF THE LETTER NO.PAY FIXN.A4/011-12 DATED**| ||**24-02-2012**| |**EXT.P8 -**|**TRUE COPY OF THE REPRESENTATION DATED 24-03-2012**| ||**SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT**| |**EXT.P9 -**|**TRUE COPY OF THE LETTER NO.PAY FIXN/A4/2011-12 DATED**| ||**19-04-2012 OF THE ACCOUNTS OFFICER (PAY FIXATION)**| |**EXT.P10 -**|**TRUE COPY OF THE LETTER NO.ESTT.VII/3134/2012 DATED**| ||**22-05-2012.**| |**EXT.P11 -**|**TRUE COPY OF THE REPRESENTATION DATED 16-08-2012**| ||**SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT**| |**EXT.P12 -**|**TRUE COPY OF THE LETTER NO.SC/LTS/CON.95/74 DATED**| ||**10-03-1997 OF THE CHIEF PERSONNEL OFFICER OF THE K.S.E.B.**| |**EXT.P13 -**|**TRUE COPY OF THE REPRESENTATION DATED 18-10-2013 WITHOUT**| ||**ITS ENCLOSURES SUBMITTED BY THE PETITIONER BEFORE THE**| ||**CHIEF INTERNAL AUDITOR OF THE KSEB**| |**EXT.P14 -**|**TRUE COPY OF THE LETTER NO.PAY FIXN A4/63/014-15/2013**| ||**DATED 19-05-2014 ALONG WITH THE LEGAL OPINION.**| |**RESPONDENT(S)' EXHIBITS**|| |**-----------------------**|| |**EXT.R3(A)**|**TRUE COPY OF THE DECLARATION DATED 23.05.1997**| |**EXT.R3(B)**|**TRUE COPY OF THE GO(P) NO.3116/A8/FIN DATED 15.12.1998**| |**EXT.R3(C)**|**TRUE COPY OF THE BO.1130/2000/ESTT V/1468/90 DATED**| ||**09.05.2000**| |**EXT.R3(D)**|**TRUE COPY OF THE LIST OF CENTRAL GOVERNMENT DEPARTMENTS**| ||**WHICH SERVICE CAN BE CONSIDERED FOR WEIGHT AGE IN PAY**| ||**REVISIONS.**| ||**TRUE COPY**| **P.S. TO JUDGE** **EL** ## **ANU SIVARAMAN, J. ----------------------------------------------W.P(C).No. 13862 of 2014 ----------------------------------------------Dated this the 8[th] February, 2017** ## **JUDGMENT** This writ petition is filed challenging Exhibits P7, P9 and P14 orders as also Exhibit P12, to the extent it omits to include service under the Railway Establishment as qualifying service for pension. Further prayer is to declare that the service rendered by the petitioner in the Indian Railways as Electrical Chargeman from 19.10.1984 to 27.9.1990 is regular pensionable Central Government service qualifying for the benefit of weightage as contemplated in Exhibit P6. 2. The petitioner was granted service weightage reckoning the period of service rendered by him in the Indian Railways also on the basis of Exhibit P6 Board order dated 9.9.1996 which provided that regular pensionable Central Government service followed by Board service will be counted for computing qualifying service for weightage. However, by Exhibit P7, audit objection was raised with regard to grant of increments to the petitioner during the years 1997, 1998 and 1999 pursuant to his temporary promotion as Assistant Engineer (Electrical) by Exhibit P1. It was further stated that 2 _**WP(C).13862/14**_ counting of Railway service for weightage was not in order. Though the petitioner preferred representations against the same, Exhibits P9 and P14 orders were issued by the Accounts Officer and Legal Adviser respectively confirming the audit objection. The audit objection as well as the above orders are under challenge in this writ petition. 3. In Exhibit P14, it is stated that Railway service does not come under the purview of the Central Government in the light of Exhibit P12 Board order dated 10.3.1997. With regard to sanction of increment, it is stated that promotion to the post of Assistant Engineer provisionally granted to the petitioner would entitle him to fixation of pay in the pay scale of Assistant Engineer, but he will not be eligible for increment. A further contention is taken stating that the petitioner had, after being promoted as Assistant Engineer, availed leave without allowance from 27.4.2002 to 3.6.2005 and the declaration of his probation in the post of Assistant Engineer without considering the break is illegal and the petitioner is to start probation afresh after returning from leave in the post of Assistant Engineer. 3 _**WP(C).13862/14**_ 4. Heard learned counsel for the petitioner and the learned Standing Counsel appearing for the Kerala State Electricity Board. 5. It is submitted by learned counsel for the petitioner that it is beyond dispute, going by the provisions of the Indian Railway Establishment Code as well as the provisions contained in Section 80 of the Code of Civil Procedure, 1908, that the Indian Railways is treated as a department directly under the Central Government and it is only for administrative purposes that power is vested in the Railway Board. Service in the Indian Railways is, therefore, regular pensionable Central Government service and no distinction is available any where in the rules or even in Exhibit P6 order, justifying a departure from the said position. It is submitted that Exhibit P12 is only a communication of the Chief Personnel Officer to the Finance Adviser and Chief Accounts Officer of the Board enumerating the services in the Appendix to the Central Civil Services (Classification Control and Appeal) Rules, 1965 and the statement contained in Exhibit P12 that the benefit of weightage will not be applicable in case of service in the Indian Railway Establishment is completely illegal and unsustainable 4 _**WP(C).13862/14**_ in view of the clear status of a Railway employee as Central Government employee. 6. It is argued that the Census Report of Central Government employees clearly states that the Ministry of Railways has a major share of the total regular Central Government employees and it is thus clear that Railway employees have always been reckoned as Central Government employees. It is further submitted that Rule 31(f) of the Kerala State and Subordinate Service Rules, 1958 makes it clear that a provisionally promoted person would also be entitled to increments in the scale of pay of the promoted post. This is all that has been drawn by the petitioner. Further, it is stated that the leave availed of by the petitioner being before the amendment effected in Clauses 4 and 5 of Appendix XIIA to Part I KSR, the petitioner would only have to complete his probation after returning from leave without allowance availed of by him and would not be liable to start probation afresh. 7. A counter affidavit has been filed on behalf of the 3[rd] respondent, contending that the petitioner was appointed as Assistant Engineer under 10% quota reserved for in service B Tech Degree holders. He was under probation for two years 5 _**WP(C).13862/14**_ within a continuous period of three years from 7.7.2000. Before completing satisfactory probation, the petitioner was on leave without allowance from 27.4.2002 to 3.6.2005. Clause 5 of Appendix XIIA of Part I KSR deals with the case of leave without allowance for taking up employment abroad without declaring probation. Under the above clause, the only thing protected is the right to rejoin service. The incumbent has to forfeit his prior service and will be treated as new entrant and will have to start afresh his probation from the date of rejoining duty from leave with allowance. The declaration of probation of the petitioner would start from 4.6.2005. It is also submitted that as the incumbent qualified B.Tech degree in 1996, he became competent for appointment as Assistant Engineer (Electrical). Thus the petitioner was appointed as Assistant Engineer on temporary basis for 179 days on 12.11.1996. The above promotion was not a regular promotion but was granted to only those who agreed upon the terms and conditions of this purely provisional appointment. Only such persons who executed in undertaking to this effect were given temporary appointment. This temporary appointment was purely provisional and a declaration to that extent obtained from the petitioner is _**WP(C).13862/14**_ 6 posted in his service book. Hence, the petitioner was fully aware of the condition of the temporary appointment. The conditions for provisional appointment recorded in the service book of the petitioner as follows: _“Condition No.1 says that this appointment is purely provisional for 179 days from the date of order, i.e., 8.11.1996 or till regular PSC hands report for duty whichever is earlier. Condition No.2 says that he will be reverted to his original cadre Engineer immediately on termination of this appointment._ _Condition No.3: He is eligible to fix pay as per Rule of KSR in the scale of Assistant Engineer. He will be paid the minimum pay in the time scale of pay applicable. Increments when due will be granted in the substantive post (i.e., lower post) only and temporary appointment period will not count for probation and hence for increment.”_ As regards the weightage for Railway service, it is contended that only the service in Central Government Department can be considered as Government service, since service under public sector undertakings cannot be reckoned towards counting of weightage. 8. I have considered the contentions advanced. Rule 31(f) of Part II of KS & SSR reads as follows: ## “ _31._ _**Temporary promotion.-**_ _xx xx_ _(f) There shall be paid to a person promoted under sub-rule (a) or (b) either the minimum of the higher time scale of pay, or the pay admissible to him in the higher time scale based on the pay in the lower time scale applicable to him under the rules regulating_ 7 _**WP(C).13862/14**_ _the fixation of pay from time to time, whichever is higher. He shall be paid increments in the time scale at the time intervals, as fixed by Government from time to time.”_ It is clear from the order of appointment as Assistant Engineer (Electrical) issued to the petitioner, who was working as Sub Engineer in the Board at the relevant time, that what was granted to the petitioner was a promotion in terms of Rule 31 (a)(i). In the circumstances, the provisions of Rule 31(f) would govern the grant of increments to the petitioner and not the provisions of Rule 9. Even if the provisions of Rule 9 are taken into account, the petitioner, who is an employee in a substantive post in the Board, would be entitled to placement in the higher scale of pay as also to draw increments in the said scale during the currency of his provisional appointment. In the above view of the matter, the said objection raised is unsustainable. 9. The further objection to the effect that the Indian Railways is not a Department under the Government of India, is also only to be found against the Board in view of the clear provisions of the Railway Establishment Code as well as the Code of Civil Procedure as also the applicability of all pay 8 _**WP(C).13862/14**_ revision orders and general orders issued in respect of Central Government employees to Railway employees as well. The Railways is not a separate public sector undertaking and has always been treated as a part of the Central Government establishment. Indication of the status of Railway servants as Government employees is available in the decisions of the Apex Court, including _**Union of India v. Subhaih**_ [(1996)2 SCC 258] and _**M.M.R. Khan v. Union of India**_ [1990 Supp SCC 791]. The condition contained in Exhibit P12 to the effect that service in the Indian Railways will not be counted for service weightage is in duration of Exhibit P6 Board order and is therefore not sustainable. Further, the contention raised in Exhibit P14 for the first time that the petitioner's probation was wrongly declared is also not sustainable, since such an objection is raised for the first time on 5.5.2014 in respect of probation declared in 2006. In the above view of the matter, Exhibits P7, P9 and P14 orders are set aside. It is declared that the condition contained in Exhibit P12 to the effect that service in Indian Railways shall not be reckoned for service weightage is not enforceable as against the petitioner. Consequently, the Board is directed to 9 _**WP(C).13862/14**_ issue orders sanctioning full pension and all pensionary benefits to the petitioner within a period of three months from the date of receipt of a copy of this judgment. The writ petition is ordered accordingly. **ANU SIVARAMAN JUDGE** _vgs_