Daison M.J. and Manoj Kumar v. Kerala State Electricity Board Limited

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY ,THE 07TH DAY OF FEBRUARY 2019 / 18TH MAGHA, 1940** ## **WA.No. 262 of 2019** **AGAINST THE ORDER DATED 30.01.2019 VACATING THE INTERIM ORDER OF STAY IN WP(C)NO.40960/2018 OF HIGH COURT** ## **APPELLANTS/PETITIONERS:** **1 DAISON M.J., AGED 43 YEARS OVERSEER (ELECTRICAL), SECTION OFFICE, KSEB LTD., PUTHENKURIZ-682308, ERNAKULAM, S/O.M.P.JOHN, RESIDING AT MAROKKIL HOUSE, PUTHENKURIZ, ERNAKULAM-682308.** - **2 V.MANOJ KUMAR, AGED 49 YEARS OVERSEER (ELECTRICAL), 66 KV SUB STATION, KAKKANAD, ERNAKULAM, S/O.VELAPPAN NAIR, RESIDING AT KONATTU HOUSE, IRUMPANAM P.O., THRIPUNITHURA - 682309.** **BY ADVS.SRI.ELVIN PETER P.J. SMT.N.R.REESHA SRI.K.R.GANESH** ## **RESPONDENTS/RESPONDENTS:** - **1 THE KERALA STATE ELECTRICITY BOARD LIMITED, REPRESENTED BY ITS SECRETARY, VAIDYUTHI BHAVANAM, PATTOM P.O., THIRUVANANTHAPURAM695004.** **2 THE SECRETARY, KERALA STATE ELECTRICITY BOARD LIMITED, VAIDYUTHI BHAVANAM, PATTOM P.O., THIRUVANANTHAPURAM-695004.** W.A.No.262 of 2019 2 - **3 THE CHIEF ENGINEER (HRM), KERALA STATE ELECTRICITY BOARD LTD., VAIDYUTHI BHAVANAM, PATTOM P.O., THIRUVANANTHAPURAM695004.** - **4 MOHANAN M.,LINEMAN GRADE-I, K.S.E.BOARD LIMITED, ELECTRICAL SECTION, CHENNITHALA, ALAPPUZHA690105.** - **5 SHIBU G.,LINEMAN GRADE-I, K.S.E.BOARD LIMITED, ELECTRICAL SECTION, AYROOR, VARKALA, THIRUVANANTHAPURAM-695310.** **R1 TO R3 BY ADV.SRI.RAJU JOSEPH (SR.) SRI.C.JOSEPH ANTONY** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 07.02.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** W.A.No.262 of 2019 3 ## **JUDGMENT** ## **Ravikumar, J.** This intra court appeal under Section 5 of the Kerala High Court Act is directed against the order dated 30.1.2019 in W.P. (C)No.40960 of 2018 whereby an interim order of stay granted on 14.12.2018 in the said writ petition was vacated. The appellants/writ petitioners are Overseers (Electrical) working under the Kerala State Electricity Board Limited (KSEBL), the first respondent. Essentially, in the writ petition, they challenge Ext.P3 order whereby 325 persons belonging to the category of Lineman Grade-I were promoted on provisional basis under Rule 31(a)(i) of Part II of the Kerala State and Subordinate Services Rules, 1958 (KS & SSR) subject to the conditions specified thereunder. The appellants/petitioners mount challenge against Ext.P3 order raising the following twin grounds:- - “A. From the facts stated above, it can be seen that as per Ex.P-1 and P-2 orders, qualifications have been prescribed by the 1[st] respondent Board for manning the post of Overseer. As per Ex.P-1 and P-2, diploma in Electrical Engineering is a mandatory qualification to hold the post of Overseer since the post of Overseer is a supervisory post. The respondents 4 and 5 and other persons who have been allegedly promoted as per Ex.P3 order do not possess the qualification prescribed under Ex.P-1 and P-2 orders. Therefore Ex.P-3 promotion order is absolutely illegal, arbitrary, unfair, unreasonable, discriminatory and violative of Article 16 of the Constitution of India and the same are liable to W.A.No.262 of 2019 4 be set aside. - B. After having issued Ex.P-2 order, the respondents 1 to 3 cannot promote unqualified persons to the posts of Overseer in the Board. However, flouting the mandatory requirements prescribed under Ex.P-1 and P2, the action of the respondents in promoting the respondents 4 and 5 and others who are unqualified to hold the post of Overseer is absolutely illegal and cannot be countenanced in law. Therefore Ex.P-3 promotion order is liable to be quashed. The respondents 4 and 5 and others in Ex.P-3 order have not taken charge in the promoted post of Overseer.” 2. Evidently, though 325 persons were promoted provisionally under Rule 31(a)(i) of Part II of KS & SSR the appellants/petitioners have chosen to make only two among them as respondents in the writ petition. In the writ petition it is stated that the said two persons are arrayed as respondents 4 and 5 in their individual capacity as also in their representative capacity to represent all the other 323 Lineman Grade-I who were promoted under Ext.P3. At this juncture, we may note that the learned Senior Counsel appearing for respondents 1 to 3 submitted that against the failure of the appellants/writ petitioners to implead all the persons included in Ext.P3 order of promotion in the writ petition carrying challenge against Ext.P3 order a specific objection has been raised in the counter affidavit filed in the writ petition. Therefore, essentially, the question whether owing to the failure to implead all necessary W.A.No.262 of 2019 5 parties the writ petition is liable to be dismissed, is a question which was raised as an objection by respondents 1 to 3. In view of the order which we propose to pass in this appeal we leave that question to be decided in the writ petition and we are proceeding to consider the appeal without considering the said issue. We have already taken note of the fact that the challenge against Ext.P3 order was made by the appellants raising twin grounds. Firstly, they contend that respondents 4 and 5 and the other promotees under Ext.P3 do not possess the qualifications prescribed under Exts.P1 and P2 and therefore, Ext.P3 order of promotion is illegal, arbitrary, unfair, unreasonable, discretionary and violative of Article 16 of the Constitution of India. The second contention is that having issued Ext.P2 order respondents 1 to 3 could not have ordered promotion of unqualified persons to the post of Overseer in the Board. In such circumstances, the promotion of respondents 4 and 5 and others who were unqualified to hold the post of Overseer is absolutely illegal and on that ground itself Ext.P3 is liable to be quashed. As stated earlier, the learned Single Judge passed an order of stay of implementation of Ext.P3 order on 14.12.2018. As per the order impugned in this appeal, dated 30.1.2019, the said order of stay was vacated. The first question to be considered in the said circumstances, according to us, is whether this appeal against the order vacating the order of stay W.A.No.262 of 2019 6 ## dated 14.12.2018 should be maintained in the light of the Full Bench decision of this Court in **K.S.Das** v. **State of Kerala [1992 (2) KLT 358 (FB)].** 3. We have heard the learned counsel appearing for the appellants and also the learned Senior Counsel appearing for respondents 1 to 3. 4. A specific ground highlighting threat to the lives of qualified persons in case of promotion of unqualified persons as Overseers, has been raised in the appeal. It is to be noted that in fact, the said ground is highlighted in the appeal. The learned Senior Counsel appearing for respondents 1 to 3 submitted that such a ground is not specifically raised in the writ petition. Countering the said contention the learned counsel appearing for the appellants contended that in ground No.1 therein the appellants have raised violation of Ext.P1 and it would take the aforesaid contentions as well. We will deal with that issue a little later. 5. Another question also crops up for consideration in view of the facts obtained in this case especially, taking note of the ground upon which the order of stay was vacated by the learned Single Judge. As is discernible from the impugned order, the interim order granted on 14.12.2018 was vacated on the ground that the appellants herein have already obtained promotion to the post of W.A.No.262 of 2019 7 Overseer. In this context, it is to be noted that the appellants herein who have already obtained promotion and thus reached the post of Overseer are challenging Ext.P3 order whereby 325 persons belonging to Lineman Grade I category are promoted under Rule 31(a)(i) of Part II of KS & SSR. In the counter affidavit filed by respondents 1 to 3 they also raised a question, rather an objection, regarding the locus standi of the appellants to challenge Ext.P3 order. Admittedly, the question of locus standi is yet to be considered by the learned Single Judge. Needless to say that while considering such a question another aspect may have to be considered taking note of the fact that temporary promotion of 325 persons under Ext.P3 order would not in any way affect the right of continuance of the appellants in the category of Overseers, their seniority in that category as also their promotional prospects. That aspect, according to us, is whether, in such circumstances, apart from a public interest litigation, how can a challenge be made against Ext.P3, by the appellants herein and whether the appellants are having only the right to file a writ petition as a public interest litigation. The learned counsel appearing for the appellants relied on a decision of the Hon'ble Apex Court in **Dr.Meera Massey** v. **Dr.S.R.Mehrotra** reported in **(1998) 3 SCC 88** to contend that the objection raised based on the question of locus standi lacks merits. That was a case where the respondent W.A.No.262 of 2019 8 therein, who was a Professor, filed the writ petition challenging selection and regularization of various persons in different posts alleging contradiction to the Act, Statutes and Ordinances. Such selection and regularization sought to be effected to the post of Lecturer. Essentially, the contention therein was raised regarding his locus standi. While considering that issue, in paragraph 7 thereunder, the Apex Court virtually held that such a person would be having locus standi to challenge such proceedings as the authorities on the subject would accord approval for filing public interest litigation. Therefore, while considering the question of locus standi, the learned Single Judge may have to consider the question, even if the petitioners are having the locus standi to maintain the writ petition, whether the approval should be for filing it as a public interest litigation. Since W.P.(C)No.40960 of 2018 is pending and this appeal is only against the order vacating the stay of Ext.P3 granted initially we do not think it necessary or proper to go into that question and we are of the view that it is only befitting to leave that question as well, to be decided in the writ petition. Any venture to decide the aforesaid questions by us, at this stage, would touch the very maintainability of the writ petition. As the scope of this appeal is confined to consideration of the question as to whether intra court appeal challenging an order vacating the order of stay is maintainable W.A.No.262 of 2019 9 or not we do not propose to consider any other question pending consideration of the above mentioned writ petition unless it is required for the disposal of this appeal. 6. Now, reverting to the question regarding the maintainability of the captioned appeal we are of the view that the said question has to be decided in the light of the decision of the Full Bench in **K.S. Das'** case (supra). The question that was considered and decided by the Full Bench was whether an appeal would lie to a Division Bench under Section 5(i) of the Kerala High Court Act, 1958 against an interlocutory order in a writ petition, while the writ petition is pending and if so, what are the circumstances under which such an appeal would lie ? While considering the said question the Full Bench held that there would be considerable difference between the question whether an appeal would lie to a Division Bench against an interlocutory order in a writ petition when the writ petition itself is pending and as to the scope of interference in such appeal. After observing thus the Full Bench held further that normally discretionary orders would not be interfered with by the Division Bench in exercise of the power under Section 5(i) of the High Court Act unless the impugned orders are without jurisdiction, contrary to law or perverse and they also cause serious prejudice to the parties in such a manner that it might be difficult to restore the status quo W.A.No.262 of 2019 10 ante or grant adequate compensation. Bearing in mind the said exposition of law by the Full Bench we will proceed to consider the question whether this intra court appeal is maintainable or not, in view of the facts and circumstances obtained in this case. It is also submitted before us that challenging Ext.P3 order promoting 325 persons belonging to the Lineman Grade I category in KSEBL besides the writ petition from which this appeal arises certain other writ petitions are also filed. It is virtually admitted before us that in those writ petitions also implementation of Ext.P3 order got stayed and admittedly they are still in force. It is also a fact that some of such writ petitions are filed by persons belonging to the category of Lineman Grade I under KSEBL raising contention that promotees under Ext.P3 are unqualified whereas, they are qualified, for such promotion. As noticed hereinbefore, in the case of the appellants they have already reached the post of Overseer and the 325 promotees are given promotion as Overseers as per Ext.P3 only on temporary basis. In this appeal, as noticed hereinbefore, as also in the original petition, the appellants/petitioners did not raise any contention that temporary promotion of such persons would adversely affect either their promotional prospects or their continuance in the post of Overseer or their seniority in the said post. As noticed hereinbefore, in this appeal, the main contention is that W.A.No.262 of 2019 11 effecting promotion of such unqualified hands, would not only violate Ext.P1 but also would pose threat to the lives of qualified hands like the appellants as lack of qualification would disable them from discharging their duties with the required dexterity. Since the appellants raised the apprehension of threat to their lives we will consider that aspect of the matter. In that context, Ext.P2 order dated 24.11.2018 issued by the first respondent would assume relevance. Virtually, it is an order approving the proposal to adopt the minutes of the meeting of the Standing Committee of Central Electricity Authority and implementation of CEA (Measures relating to Safety & Electricity Supply) Regulations, 2010 and such other matters. The said order dated 24.11.2018 would disclose that in KSEBL there are quite large group of personnel falling under the category of non-qualified candidates but with adequate experience in different cadres, and the numbers of such personnel in the following categories are as hereunder:- “ **S.N Category Qualification Number** 1 Lineman II Not Acquired ITI Qualification 3325 2 Lineman I Not Acquired ITI Qualification 3553 3 Overseer Not Acquired ITI Qualification 2517 Total 9395” It would reveal that in the category of Overseer, the number of persons lacking ITI qualification is 2517. Thus, indisputably, several W.A.No.262 of 2019 12 Diploma holders like the promotees under Ext.P3 were already promoted to the post of Overseer and hitherto, they have been working along with the appellants. In that context, the recital in Ext.P2 under the sub-caption `Grouping and Preference' is also worthy for reference. It reads thus:- “Lineman and Overseer having experience above 5 years shall be given 80 Hrs of training (Group IA) and Lineman and Overseer having less than 5 years of experience shall be given 350 Hrs of training (Group IB)” According to us, it would suggest that such training is being imparted to persons belonging to the group of Lineman and Overseer lacking the requisite qualification under Ext.P1 but having experience in the cadre of Overseer. This itself would reveal that this is not the first time that such persons lacking ITI qualification are promoted as Overseers. We make it clear that we shall not be understood to have held that those persons are unqualified for promotion to the post of Overseer as that question is essentially one of the questions to be decided in the writ petition. In other words, we are not making any finding or observation regarding the question whether such persons are qualified to be promoted to the post of Overseer or not. Whatever that be, it is obvious that Ext.P2 itself would reveal the fact that already 2517 persons lacking ITI qualification are working in the W.A.No.262 of 2019 13 post of Overseer. In that context, it is also the submission of the learned Senior Counsel appearing for respondents 1 to 3 that even during the period between the dates of Exts.P1 and P2 several such persons lacking ITI qualification were promoted to the post of Overseer. Prima facie that submission is correct lest 2517 persons lacking ITI qualification would not have been there in the Overseer category. In such circumstances, we are not persuaded to accept the contention based on the apprehension of threat to lives. 7. We will now consider the question whether the order impugned in this intra court appeal invites interference in the light of **K.S.Das'** case (supra). It is true that there is no inviolable position that an appeal under Section 5(i) of the High Court Act would not lie against an interim order. We have already taken note of the admitted factual position that challenging Ext.P3 besides the writ petition from which this appeal arises several other writ petitions are also filed. Order staying implementation of Ext.P3 is passed in those cases as well. Taking into account the observations made by us with reference to the contention of the appellants/the petitioners who are already in the category of Overseer in KSEBL we are of the view that the order vacating the stay of Ext.P3 passed on 14.12.2018 would not cause any serious prejudice as despite the impugned order KSEBL would not be in a position to implement Ext.P3 as long as the order of stay W.A.No.262 of 2019 14 of Ext.P3 in the other cases are not vacated. Taking into account all the aforesaid aspects, our observation regarding the locus standi of the appellants/petitioners raised specifically by the respondents and also the question whether the appellants are having only a right to prefer a public interest litigation challenging such procedures that culminated in Ext.P3 in the light of the decision of the Hon'ble Apex Court in **Dr.Meera Massey's** case (supra) we are of the view that there is no circumstance of necessity to interfere with the impugned order vacating earlier order of stay of Ext.P3 passed by the learned Single Judge at this stage, at the instance of the appellants herein. In that view of the matter, this appeal is dismissed. We are making it clear that we shall not be understood to have made any observation touching the merits of the rival contentions and in other words, the parties will be having the right to raise all legally permissible contentions in the writ petition. Sd/- **C.T.RAVIKUMAR Judge** Sd/- **V.G.ARUN Judge** TKS W.A.No.262 of 2019 15 ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **ANNEXURE-A1** **TRUE COPY OF THE APPLICATION SUBMITTED BY SMT. DEEPA V.S. DATED 15/3/2017 BEFORE THE INFORMATION OFFICER.** ## **ANNEXURE-A2** **TRUE COPY OF THE REPLY DATED 25/4/2017 ISSUED BY THE INFORMATION OFFICER IN THE OFFICE OF THE 3RD RESPONDENT.** **ANNEXURE-A3** **TRUE COPY OF THE ORDER B.O.(FB) NO.1460/2009,(CP/R&P/PLG.1/MODEL SECTION/2009-10-DATED 4/6/2009.** **ANNEXURE-A4 TRUE COPY OF THE RELEVANT EXTRACT OF THE REPORT SUBMITTED BY INDIAN INSTITUTE OF MANAGEMENT, KOZHIKODE.** **ANNEXURE-A5 TRUE COPY OF THE RELEVANT EXTRACT OF THE SAFETY POLICY FRAMED BY THE BOARD.** ## **ANNEXURE-A6** **TRUE COPY OF THE MINUTES OF THE MEETING OF THE STANDING COMMITTEE ON ELECTRICITY SAFETY CONVENED ON 10/2/2018.** TKS