George V. James v. Kerala State Electricity Board and Others

W.P.(C).No.13672/14 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **MONDAY, THE 21[ST] DAY OF NOVEMBER 2022 / 30TH KARTHIKA, 1944 WP(C) NO. 13672 OF 2014** ## **PETITIONER:** GEORGE.V. JAMES S/O.V.M.JAMES, EXECUTIVE ENGINEER (LD-II), O/O.THE CHIEF ENGINEER, SYSTEM OPERATION, KALAMASSERY, ERNAKULAM, RESIDING AT VADAKKUMPARAMBIL HOUSE, NANDANATH KOCHACKO ROAD, THAMMANAM, KOCHI-32. BY ADVS. SRI.BIJU BALAKRISHNAN SMT.PRINCY XAVIER SMT.V.S.RAKHEE ## **RESPONDENTS:** 1 KERALA STATE ELECTRICITY BOARD VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM, REPRESENTED BY ITS CHAIRMAN, PIN-695004. 2 THE SECRETARY KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM, PIN-695004. 3 THE CHIEF ENGINEER HUMAN RESOURCES MANAGEMENT KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM, PIN-695004. 4 JOSE M.V. EXECUTIVE ENGINEER, ELECTRICAL DIVISION, MANNARKAD, PALAKKAD, PIN-678582. W.P.(C).No.13672/14 2 5 MOSES RAJ KUMAR.S. EXECUTIVE ENGINEER, OFFICE OF CHIEF ENGINEER, THERMAL PROJECT, HMT COLONY P.O., KALAMASSERY, ERNAKULAM, PIN-683503. 6 ANIL KUMAR P.K. EXECUTIVE ENGINEER, ELECTRICAL DIVISION, NEYYATTINKARA, THIRUVANANTHAPURAM DISTRICT, PIN695121. - 7 SIDHARTHAN.P.V. EXECUTIVE ENGINEER, ELECTRICAL CIRCLE, SREEKANDAPURAM, KANNUR DISTRICT, PIN-670631. 8 MINI P NAIR EXECUTIVE ENGINEER, OFFICE OF THE CHIEF ENGINEER, VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM, PIN-695004. - 9 AMBILI.B. EXECUTIVE ENGINEER, TRANSMISSION CIRCLE, VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM, PIN-695004. - 10 MOHANA KUMAR.B.V. EXECUTIVE ENGINEER, TRANSMISSION DIVISION, MAVELIKKARA, ALAPPUZHA DISTRICT, PIN-690101. - 11 MOHAMMED SHEREEF EXECUTIVE ENGINEER, ELECTRICAL DIVISION, KAZHAKUTTOM, THIRUVANANTHAPURAM, PIN-695582. 12 SWAMITHAN.K.B. EXECUTIVE ENGINEER, ELECTRICAL DIVISION, PALAKKAD, PIN-678001. 13 K.R.RAJAN EXECUTIVE ENGINEER, ERECTION DIVISION, KALLARKUTTY, IDUKKY DISTRICT, PIN-685562. W.P.(C).No.13672/14 3 14 SREEKUMAR.P.K. EXECUTIVE ENGINEER, ELECTRICAL CIRCLE, SHORNUR, PALAKKAD DISTRICT, PIN-679121. BY ADVS. SRI.K.S.ANIL, SC, KSEB SRI.M.FATHAHUDEEN SRI.JELSON J.EDAMPADAM SRI.SAJU JOHN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.10.2022, THE COURT ON 21.11.2022 DELIVERED THE FOLLOWING: W.P.(C).No.13672/14 4 ## **ANU SIVARAMAN, J.** ## **= = = = = = = = = = = = = = =** **W.P.(C).No.13672 of 2014** **= = = = = = = = = = = = = = = = Dated this the 21[st] day of November, 2022** ## **JUDGMENT** ## 1.This writ petition is filed seeking the following reliefs: “a) Issue a writ of certiorari or any other appropriate writ, order or direction quashing Ext.P6. b) Issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents 1 to 3 to reassign the seniority of the petitioner as Serial No. 135 in Ext.P6 in the light of Ext.P5. c) Issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents 1 to 3 to prepare a seniority list of the Executive Engineers (Electrical) strictly in accordance with the principles and procedures prescribed under Rule 27 of Kerala State & Subordinate Service Rules and direct them to make further promotions only accordance with that. d) Issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents 1 to 3 to consider Ext.P7 and pass orders after giving an opportunity of being heard to the petitioner.” - 2.Heard the learned counsel for the petitioner and the learned counsel appearing for the respondents. W.P.(C).No.13672/14 5 3. It is submitted that the petitioner entered service of the Kerala State Electricity Board on 02.03.1990 as Assistant Engineer (Electrical) in the 40% quota set up apart for B.Tech holders, by Ext.P1. He was promoted as Assistant Executive Engineer on 30.07.1998. He availed Leave Without Allowance (LWA) for taking up employment abroad from 14.06.2000 to 01.03.2005, and rejoined duty as Assistant Executive Engineer (Electrical) on 02.03.2005 at Meter Testing Sub Division, Kalamassery. Thereafter, he was promoted as Executive Engineer on 22.06.2006 and posted in the office of the Chief Engineer, Kalamassery and joined on 23.06.2006 by Ext.P2. He again availed leave without allowance from 14.11.2008 and rejoined duty on 17.06.2011. When his leave from 14.11.2008 was sanctioned only for 3 months vide Ext.P4, the petitioner preferred W.P.C No. 9519 of 2009 which was allowed by judgment dated 04.11.2014. It is submitted that in the meanwhile, the Board published the seniority list of Assistant Executive Engineers as Ext.P5, wherein the petitioner was included as Serial No.1074. Thereafter, a provisional gradation list of the Executive Engineers was published as Ext.P6, where the petitioner was included as Serial No.152, much below his W.P.(C).No.13672/14 6 juniors in service. It is submitted that since the petitioner rejoined duty on 02.03.2005 as Assistant Executive Engineer, he ought to have been placed in the provisional gradation list of Executive Engineers as Sl.No.135. It is contended that since no promotions to the post of Executive Engineer were effected at the time when the petitioner was on leave and before he rejoined duty on 02.03.2005, he would not lose his seniority and the petitioner would therefore be entitled to promotion as Executive Engineer on 02.03.2005, the date on which he rejoined. The petitioner submitted Ext.P7 objection to Ext.P6 seniority list and thereafter Exts.P8, P10, P12 and P14 representations were also submitted, but the same did not evoke any response. It is submitted that a Performance Appraisal of the petitioner was called for on 03.07.2013 by Ext.P16 but even thereafter, no further steps were taken. 4. The learned counsel for the petitioner submits that in terms of Rule 27 of Part II, K.S & S.S.R, the petitioner would be entitled to seniority reckoning his date of entry into service and that therefore the petitioner is entitled to seniority, taking note of his initial date of entry into service. It is submitted that placing W.P.(C).No.13672/14 7 the petitioner below his juniors in the cadre of Executive Engineer on the ground that he had availed leave without allowance is completely unjustified and is against the provisions contained both in Rule 27 of the K.S & S.S.R as also the provisions of Appendix XII A under Part I KSR. The learned counsel for the petitioner places reliance on the decisions of the Apex Court in **Mohammed Abdulla M v. State of Kerala and others** [2007 KHC 4094] and **Thirumal B v. Ananda Sivakumar and others** [ 2013 KHC 4898]. 5. A counter affidavit has been filed on behalf of the 2[nd] respondent contending that the petitioner was advised for appointment to the post of Assistant Engineer (Electrical) by the Kerala Public Service Commission on 26.12.1989 and was promoted to the post of Assistant Executive Engineer by order dated 30.07.1998. It is submitted that Rule 3(b) of the Kerala Engineering Service Special Rules which is adopted by the KSEB provides that no person shall be eligible for promotion as Executive Engineer, unless he has rendered 3 years of service in the cadre of Assistant Engineer [re-designated as Assistant Executive Engineer vide Board Order dated 25.02.1974 W.P.(C).No.13672/14 8 (Ext.R2(a)]. It is submitted that periods spent as leave without allowance for employment cannot be counted as duty, as is, evident from the provisions of Appendix XII A to Part I, KSR and that the petitioner had completed the 3 years of mandatory service in the cadre of Assistant Executive Engineer only during May 2006 and thereafter he was promoted to the cadre of Executive Engineer on 22.06.2006. It is submitted that Ext.R2(b) guidelines governed the grant of leave without allowance in the KSEB, and that the said guidelines are clear with regard to the mode of treatment of the period of leave without allowance taken by the petitioner for availing employment abroad. 6. A reply affidavit was also placed on record by the petitioner contending that the provisions of the Special Rules cannot override the clear provisions of Rule 27(c) of Part II KS & SSR. It is also contended that Ext.P17 proceedings had been issued on 14.12.1995, relaxing the stipulations contained in Ext.R2(a) Rules, inasmuch as the 3 years of mandatory service as Assistant Executive Engineer for promotion to the post of Executive Engineer had been relaxed in respect of the W.P.(C).No.13672/14 9 employees shown in the order. It is submitted that Ext.P18 representation has been submitted by the petitioner before the Chairman and the same is liable to be considered in accordance with law. 7. The contesting party respondents have also placed a counter affidavit on record. It is contended therein that the petitioner having availed leave without allowance for taking up employment abroad cannot thereafter claim promotion on the basis of seniority or the period of service which cannot be reckoned, since the period is specifically excluded from consideration in terms of the relevant Rules. 8. I have considered the contentions advanced. The specific case of the petitioner is that he was promoted to the post of Assistant Executive Engineer on 30.07.1998 and while working as such he had availed leave without allowance from 14.06.2000 to 01.03.2005. The petitioner has no complaints against the fixation of seniority in the post of Assistant Executive Engineer. It is only to the post of Executive Engineer that the petitioner raises a dispute with regard to the seniority as provided in the W.P.(C).No.13672/14 10 gradation list. The contention of the petitioner is that since no promotion was effected during the period when he was on leave without allowance, he is entitled to seniority and promotion without reference to the period of leave. The petitioner places reliance on Rule 27(c) of Part II KS & SSR which reads as follows:- “Notwithstanding anything contained in clauses (a) and (b) above, the seniority of a person appointed to a class, category or grade in a service on the advice of the Commission shall, unless he has been reduced to a lower rank as punishment, be determined by the date of first effective advice made for his appointment to such class, category or grade and when two or more persons are included in the same list of candidates advised, their relatives seniority shall be fixed according to the order in which their names are arranged in the advice list.” 9. However, the specific case of the respondents is that the petitioner’s claim for promotion to the post of Executive Engineer could be considered only after he completes 3 years of qualifying service as Assistant Executive Engineer. Though the petitioner contends that the Special Rules provided for 3 years of service only as Assistant Engineer, it is the specific case of the respondent that the post of Assistant Engineer was later redesignated as Assistant Executive Engineer and the provision in W.P.(C).No.13672/14 11 the Rule is for completion of 3 years of service in the said redesignated post of Assistant Executive Engineer. 10.In any view of the matter, I notice that the petitioner has retired from service. The petitioner contends that by Ext.P17 order dated 14.12.1995, similarly placed Assistant Executive Engineers had been granted promotion as Executive Engineers by relaxing the requirement of the 3 year service as Assistant Executive Engineer and insisting only on 2½ year of service. The petitioner, who had been promoted as Assistant Executive Engineer on 30.07.1998, admittedly had almost two years of service to his credit when he availed leave without allowance for taking up employment abroad on 14.06.2000. After rejoining duty it is only on completion of the further year of service that the petitioner was promoted as Executive Engineer on 22.06.2006. The petitioner has submitted Ext.P18 representation before the Chairman of the Board seeking the benefit of relaxation of the qualification of 3 years of service for promotion to the post of Executive Engineer. W.P.(C).No.13672/14 12 11.Since the petitioner had admittedly availed leave without allowance for taking up employment abroad in terms of Appendix XII A to Part I KSR and since the provisions of the said Appendix, as also the provisions of the Rule 26 Part III KSR does not permit the reckoning of the said period for all purposes, including seniority in normal circumstances, I am of the opinion that the challenge raised by the petitioner against the seniority list cannot be sustained. 12.It is pertinent to note that though the petitioner has challenged Ext.P6 and seeks reassigning of the seniority of the petitioner in the light of Ext.P5, the petitioner has made no challenge against the application of the rules or even to the orders of promotion granted to the contesting party respondents. However, since the petitioner has a specific case that relaxation has been granted to identically placed employees in the past and since the petitioner has approached the Chairman of the Board with a request for relaxation of the qualification, I am of the opinion that the said relief can be granted to the petitioner, especially in view of the fact that the grant of the relief to the petitioner at this stage will not affect any of the party respondents. W.P.(C).No.13672/14 13 In the above view of the matter, this writ petition is disposed of with a direction to the respondents to consider Ext.P18 representation, taking note of Ext.P17 and to pass appropriate orders in accordance with law, after hearing the petitioner as well, at any rate within a period of four months from the date of receipt of a copy of this judgment. **==> picture [25 x 12] intentionally omitted <==** **Anu Sivaraman, Judge** sj W.P.(C).No.13672/14 14 ## **APPENDIX OF WP(C) 13672/2014** PETITIONER EXHIBITS EXHIBIT P1 P1: COPY OF THE APPOINTMENT ORDER DATED 20.2.1990. EXHIBIT P2 P2: COPY OF THE K.S.F.E. BOARD SERVICE ENTRY DETAILS PUBLISHED IN THE BOARD WEBSITE. EXHIBIT P3 - P3: COPY OF G.O(P) NO.169/96/FIN. DT.5.2.1996. EXHIBIT P4 - P4: COPY OF THE B.O(FM) NO.1535/2011 (ESTT.III/2454/2011) DT.16.06.2011. EXHIBIT P5 - P5: COPY OF THE RELEVANT PAGES OF THE ORDER NO.EB.GR.3/AEE(ELE)/SENIORITY, DT.30.11.2009. EXHIBIT P6 - P6: COPY OF THE RELEVANT PAGES OF NOTICE NO.EB.GR.3/EE(ELE)/GL/2010-11, DT.07.01.2011. EXHIBIT P7 - P7: COPY OF THE OBJECTION FILED BY THE PETITIONER DATED 15.3.2011. EXHIBIT P8 P8: COPY OF THE REPRESENTATION DT.22.07.2013 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXHIBIT P9 P9: COPY OF LETTER NO.CESO/TECH/GNL/EB/2013-14/1146 DATED 22.7.2013. EXHIBIT P10 - P10: COPY OF THE REPRESENTATION DT.11.11.2013 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. W.P.(C).No.13672/14 15 EXHIBIT P11 P11: COPY OF LETTER NO.CESO/TECH/GNL/EB/2013-14/3081 DATED 11.11.2013. - EXHIBIT P12 P12: COPY OF THE REPRESENTATION GIVEN TO THE 2ND RESPONDENT DATED 22.02.2014. - EXHIBIT P13 P13: COPY OF LETTER - NO.CESO/TECH/GNL/EB/2013-14/6218 DATED 22.02.2014. - EXHIBIT P14 P14: COPY OF THE REPRESENTATION GIVEN TO THE CHAIRMAN OF 1ST RESPONDENT DATED 19.3.2014. - EXHIBIT P15 P15: COPY OF THE FORWARDING LETTER DATED 20.3.2014. - EXHIBIT P16 - P16: COPY OF THE PERFORMANCE APPRAISAL DT.03.07.2013 OF THE PETITIONER - EXHIBIT P17 PHOTOSTAT COPY OF THE ORDER NO.EBC-11/42/70, DATED 14-12-1995, OF THE CHIEF ENGINEER (CIVIL) GENERAL AND DEIGNS UNDER THE 1ST RESPONDENT. - EXHIBIT P18 PHOTOSTAT COPY OF THE REPRESENTATION DATED 20-06-2014 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. - EXHIBIT P19 PHOTOSTAT COPY OF THE COMMUNICATION NO.ESTT.III/DPC//2015, DATED 16-122014. - EXHIBIT P19 PHOTOSTAT COPY OF THE JUDGMENT DT.4.11.2014 IN WPC 9519/2009 - EXHIBIT P20 TRUE COPY OF PROCEEDINGS - VO.VIG/B6/4175/2009/1171 DT.15.5.15 OF THE CHAIRMAN OF THE 1ST RESPONDENT W.P.(C).No.13672/14 16 RESPONDENTS EXHIBITS EXHIBIT R2(A) TRUE COPY OF RELEVANT PAGES OF GO 16.3.1959 EXHIBIT R2(B) TRUE COPY OF THE B.O. DATED 22-03-2012 EXHIBIT R2(C) TRUE COPY OF THE CERTIFIED EXTRACT FROM KERALA GAZETTE DATED 31-03-1959 OF G.O.NO.372 DATED 16-03-1959 True copy PS to Judge