JAYAKUMAR NAIDU v. KERALA STATE ELECTRICITY BOARD

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** **&** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **FRIDAY, THE 12TH DAY OF JANUARY 2018 / 22ND POUSHA, 1939** **WA.No. 1779 of 2017 IN WPC. 17987/2015** **(AGAINST THE JUDGMENT IN WP(C) 17987/2015 OF HIGH COURT OF KERALA, DATED 10-03-2017)** ## **APPELLANT/PETITIONER:** **JAYAKUMAR NAIDU, ELECTRICITY WORKER, 110 KV SUB STATION, MEDICAL COLLEGE, THIRUVANANTHAPURAM - 695 001.** ## **BY ADV.SRI.KALEESWARAM RAJ** ## **RESPONDENTS/RESPONDENTS:** **1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY SECRETARY,** - **KERALA STATE ELECTRICITY BOARD, VAIDYUTHI BHAVAN, THIRUVANANTHAPURAM - 695 001.** **2. THE CHIEF ENGINEER (HRM), KERALA STATE ELECTRICITY BOARD, VAIDYUTHI BHAVAN, THIRUVANANTHAPURAM - 695 001.** **SMT.ANEETHA A.G., SC, KERALA STATE ELECTRICITY BOARD** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 12-01-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ss ## **P.N.RAVINDRAN, J &** ## **R.NARAYANA PISHARADI, J** **--------------------------------** ----------------------------------- **W.A.No.1779 of 2017** ------------------------------------------------------------------Dated this the 12[th] day of January, 2018 ## **JUDGMENT** ## _**P.N.Ravindran, J**_ The appellant is the petitioner in W.P.(C).No.17987 of 2015. He entered service as Electricity Worker (Mazdoor) in the Kerala State Electricity Board on 22.01.2004. While he was in service, he submitted Ext.P1 statement of relinquishment dated 11.10.2006, permanently relinquishing his right for promotion to the post of Lineman Grade-II. The relinquishment was accepted by the Chief Engineer (General) as per order dated 21.12.2006. About an year later, the appellant submitted Ext.P2 representation dated 02.04.2008, whereby, he withdrew the relinquishment made by him and requested that he may be promoted to the category of Lineman Grade-II. He had in the said representation which was addressed to the Chief Engineer, stated that he had relinquished his promotion on account of the fact that his mother was bedridden and that she passed away thereafter in October, 2006. 2. The Chief Engineer considered Ext.P2 representation and rejected it by order passed on 19.05.2009. The said decision was communicated to the appellant by the Executive Engineer **W.A.No.1779 of 2017** 2 (Transmission Circle), Kerala State Electricity Board, Thiruvananthapuram, as per Ext.P3 letter dated 19.05.2009. The appellant thereafter submitted Ext.P4 representation dated 27.07.2011 before the Secretary, Kerala State Electricity Board, wherein he requested that he may be promoted without seniority. He had in the said representation stated that prior to the issuance of the Board order dated 6.3.2000, as per the rules prevailing in the Board, an employee could relinquish his promotion any number of times temporarily and even permanently and that there was no restriction or any condition imposed except the condition that the employee relinquishing promotion will lose his seniority. The request contained in Ext.P4 was declined on the ground that the relinquishment made by the appellant is permanent and the said decision was communicated to the appellant by the Chief Engineer as per Ext.P5 letter dated 12.1.2012. The appellant thereupon submitted Ext.P6 petition dated 16.7.2012, wherein, relying on Rule 38 of Part-II of the Kerala State and Subordinate Services Rules, 1958, he requested that relinquishment may be cancelled and he may be promoted to the post of Lineman Grade-II. The Chief Engineer forwarded Ext.P6 to the Secretary of the Board to be placed before the Board accompanied by his note dated 2.11.2012 forming part of Ext.P7. While the matter was pending before the 3 ## **W.A.No.1779 of 2017** Board, the appellant filed W.P.(C)No.22487 of 2013 in this court challenging Exts.P3, P5 and P7 and seeking the following reliefs: _i) To issue a writ of certiorari quashing Exts.P3, P5 and P7 as unjust, illegal and unsustainable;_ _ii) To declare that the petitioner is entitled to get promotion in the higher post after getting Ext.P1 cancelled;_ _iii) To issue a writ of mandamus directing the respondents to accept the withdrawal of relinquishment as sought by the petitioner in Exts.P2 and P4;_ _iv) To issue a writ of mandamus directing the respondents to promote the petitioner to the post of Lineman Gr.II and subsequent posts as per his seniority after issuing orders cancelling Ext.P1;_ _v) To declare that Board Order B.O (FB) No.708/2003 dated 29.05.2003 cannot stand in the way of cancelling/revoking Ext.P1 relinquishment submitted by the petitioner;_ _vi) To issue such other orders, directions or writs as may be prayed for and that this Hon'ble Court may deem fir on the facts and circumstances of the case._ 3. While W.P.(C)No.22847 of 2013 was pending in this court, the Chief Engineer issued Ext.P8 order dated 28.01.2015 based on the directions issued by the Chairman and Managing Director of the Board in his letter dated 31.12.2014. By that order, the Chief Engineer ordered promotion of the appellant to the category of Lineman Grade-II with effect from 06.10.2006 on a notional basis subject to the condition that he will be entitled to 4 ## **W.A.No.1779 of 2017** monetary benefits only with effect from the date on which he reports for duty in the category of Lineman Grade-II. This was also subject to the undertaking that he would withdraw W.P. (C)No.22847 of 2013. In view of Ext.P8, W.P.(C)No.22847 of 2013 was closed by Ext.P10 judgment delivered on 16.02.2015 leaving open the contentions raised in the writ petition. A week later, the Chief Engineer issued Ext.P11 order dated 25.02.2015, whereby Ext.P8 was cancelled and the appellant was promoted as Lineman Grade-II with effect from 28.01.2015, the date of Ext.P8 order, with monetary benefits from the date on which he joins duty. The Chief Engineer further directed that his pay in the category of Lineman Grade-II will be fixed only with effect from 28.01.2015. The instant writ petition was thereupon filed challenging Exts.P8 and Ext.P11 and seeking the following reliefs: _i) To issue a writ of certiorari quashing Ext.P11 as unjust, illegal and arbitrary to the extent to which it takes away the benefit of notional promotion as Lineman Gr.II granted to the petitioner w.e.f.06.10.2006;_ _ii) To declare that Ext.P8 is legal and valid in the eyes of law;_ _iii) To issue a writ of mandamus directing the respondents to retain the benefit given to the petitioner as per Ext.P8;_ _iv) To declare that the petitioner is entitled to get notional promotion w.e.f. 06.10.2006 as Lineman Gr.II as_ **W.A.No.1779 of 2017** 5 _done in Ext.P8;_ _v) To issue such other orders, directions or writs as may be prayed for and that this Hon'ble Court may deem fit on the facts and circumstances of the case._ 4. The appellant contended relying on Ext.P12 Government order dated 10.12.2004 that he had a right to withdraw the relinquishment made as per Ext.P1 and that it ought to have been granted when Ext.P2 request was made way back on 02.04.2008. He contended that in such circumstances, he ought to have been promoted with effect from 02.04.2008. The learned single Judge after considering the submissions made at the Bar by learned counsel appearing for the appellant and the learned standing counsel appearing for the Board held, relying on Ext.P12 Government order that the appellant is entitled to withdraw the relinquishment and the only consequence of the relinquishment is that he will not get seniority over his juniors who were promoted earlier. The learned single Judge accordingly held as follows: _“Ext.P12 only provides for the loss of seniority alone on promotion after relinquishment of promotion. That does not prohibit grant of other benefits to the incumbent. The respondents ought to have retained all other benefits other than seniority and monetary benefits. Petitioner who belonged to the class IV category ought not have been penalized by denying the benefit of promotion all these years. No reasonable person of prudent mind will relinquish promotion_ 6 ## **W.A.No.1779 of 2017** _from class IV to class III post or form the post of electricity worker to that of Lineman permanently. When the respondent chose to act upon his request at least after much delay and decided to undo the injustice done to a class IV employee, on account of inadvertence, they should have issued orders in a just and equitable manner, without causing serious prejudice to the petitioner as well as those who already got promotion in the meanwhile. In case notional promotion without the benefit of seniority and monetary benefits are granted petitioner will be able to get at least his pay fixed with effect from the date of his notional promotion”._ 5. In that view of the matter, the learned single Judge disposed of the writ petition with the following directions: _“Under the above circumstances, there shall be a direction to the respondents to reconsider the case of the petitioner for grant of notional benefits in the light of the aforesaid observations and to grant him the benefits within a period of 'two months' from the date of receipt of a copy of the judgment. For the purpose of reconsideration, the order Ext.P11 to the extent it denies the benefit of notional promotion shall stand set aside. Ext.P8 order to the extent it grants the benefit of notional promotion will be kept in abeyance till orders are passed as directed above”._ 6. The appellant was not satisfied with the said judgment. He therefore filed R.P.No.424 of 2017 seeking a review of the judgment. In the review petition, he contended relying on paragraph 5(i) of Ext.P12 Government order that he had a right to withdraw the relinquishment and that aspect of the matter was not **W.A.No.1779 of 2017** 7 considered by the learned single Judge. He contended that the learned single Judge considered only paragraph 5(v) and not paragraph 5(i). The learned single Judge considered the review petition and dismissed it by order passed on 07.06.2017. The instant writ appeal was thereupon filed, challenging the judgment delivered by the learned single Judge, to the extent it denies the appellant, promotion to the category of Lineman Grade-II with effect from 02.04.2008. 7. We heard Sri. Kaleeswaram Raj, learned counsel appearing for the appellant and Smt.A.G.Aneetha, learned standing counsel appearing for the Kerala State Electricity Board. The fact that Ext.P12 Government order dated 10.12.2004 governs employees of the Board is not in dispute. In fact the Chief Engineer has in Ext.P11 proceedings referred to the said Government order. Ext.P12 Government order was issued in the wake of the decision of this court in _**Joseph v. State of Kerala** (1987(2) KLT 579)_ , wherein the Division Bench of this court after considering Rule 38 of the Kerala State and Subordinate Services Rules, 1958 (KS & SSR for short) held that, if a person relinquishes his right to a promotional post, he loses the right to be considered for promotion until the relinquishment ceases and he may be considered for promotion in the first vacancy that arises after the relinquishment 8 ## **W.A.No.1779 of 2017** ceases. The Government had also relied on the decision of a learned single Judge of this court in O.P.No.28956 of 2008, wherein, it was held that even assuming that the relinquishment is permanent, if the employee has a right to relinquish promotion, he must have the right to withdraw it. It was also held that the finding of the authority accepting the relinquishment that the relinquishment is not against public interest, will not stand in the way of the employee exercising the right of withdrawal. The learned single Judge held that any other interpretation of Rule 38 of Part-II of the KS & SSR will be violative of the fundamental right guaranteed to the employee under Articles 14 and 16 of the Constitution of India and his legal rights under Rules 20 and 31 of the KS & SSR. 8. A reading of Ext.P12 Government order discloses that the Government have accepted the declaration of law made by this court in the aforesaid decisions and recognised the right of the employee who has relinquished promotion, to withdraw the relinquishment. As stated earlier, Ext.P12 Government order is dated 10.12.2004. The Board has no case that it was unaware of the aforesaid order. It was after Ext.P12 Government order was issued that the appellant withdrew his relinquishment for the first time by Ext.P2 letter and requested that he may be promoted to the category of Lineman Grade-II. Without rightly understanding the **W.A.No.1779 of 2017** 9 scope of Ext.P12 Government order, that request was rejected. Thereupon the appellant moved the Board and the Board also rejected his request. He thereupon filed W.P.(C)No.22847 of 2013 in this court. While the said writ petition was pending, on realising the mistake committed by the Board, the Chairman and Managing Director of the Board directed that the appellant should be promoted, provided he executes a bond to the effect that he would withdraw the writ petition filed in this court, once he is promoted. The appellant gave such an undertaking. Thereupon Ext.P8 proceedings dated 28.01.2015 was issued, promoting him to the post of Lineman Grade-II notionally with effect from 06.10.2006 subject to the condition that he will get monetary benefits only from the date on which he joins duty in the post of Lineman Grade-II. Thereupon, W.P.(C)No.22847 of 2013 was closed on 16.02.2015. Tt is thereafter that the Chief Engineer issued Ext.P11 order which is dated 25.05.2015, altering the terms of Ext.P8 and promoting the appellant with effect from 28.01.2015. 9. Though in Ext.P8 it was declared that the appellant is eligible for notional promotion with effect from 06.10.2006, we are of the opinion that in view of the relinquishment made by him, which was accepted as per order dated 21.12.2006, he cannot claim promotion to the post of Lineman Grade-II with effect from a date **W.A.No.1779 of 2017** 10 prior to the date on which he withdrew the relinquishment, namely 02.04.2008. He can aspire to be promoted to the category of Lineman Grade-II only to the vacancies which arose after 02.04.2008. He cannot also claim seniority over Electricity Workers who were promoted to the category of Lineman Grade-II in the meanwhile. As observed by the learned single Judge in paragraph 9 of the impugned judgment, the respondents had a duty to act upon the appellant's request and should have issued orders in a just and equitable manner. Instead, his repeated requests were turned down ignoring the terms of Ext.P12 Government order. The appellant is in our opinion entitled to be promoted to the category of Lineman Grade-II with effect from 02.04.2008 subject to the condition that he will be entitled to monetary benefits and seniority only with effect from the date of Ext.P8 order, namely 28.01.2015. He will not be entitled to seniority over his juniors who have already been promoted to the category of Lineman Grade-II till 28.01.2015. The claim of the appellant that he should be given notional seniority in the category of Lineman Grade-II with effect from 02.04.2008, cannot in our opinion be accepted for the reason that none of his juniors who have been promoted are on the party array. Though learned counsel for the appellant submitted that the defect of nonjoinder can be got over by directing the respondents to hear all the **W.A.No.1779 of 2017** 11 persons promoted in the interregnum, we are of the opinion that, that it is not a substitute for the appellant's failure to implead necessary parties in the writ petition. The learned single Judge was therefore in our opinion perfectly justified in observing in paragraph 9 of the impugned judgment that grant of relief to the appellant should not cause prejudice to those who have already got promotion in the meantime. 10. In that view of the matter, we find no reason or justification to interfere with the impugned judgment. In our opinion, without the presence of the appellant's juniors who have been promoted during the period from 02.04.2008 to 28.01.2015, this court will not be justified in directing the respondents to grant him seniority with effect from 02.04.2008, even on a notional basis. If such request is granted, it would unsettle the seniority of persons already promoted to the category of Lineman Grade-II and higher posts and may even lead to the reversion of someone who is not on the party array. It will also lead to other civil consequences adverse to their interests. In such circumstances, we are of the considered opinion that no interference is called for with the impugned judgment. The learned single Judge has by the impugned judgment, directed the respondents to reconsider the case of the appellant for grant of notional benefits in the light of the observations made in 12 ## **W.A.No.1779 of 2017** the judgment, within a period of two months from the date of receipt of a copy of the judgment. We therefore find no good grounds to interfere with the impugned judgment. The writ appeal fails and is accordingly dismissed with a direction to the respondents to give effect to the directions issued by the learned single Judge, within two months from the date on which the appellant produces a certified copy of this judgment before the second respondent. _Sd/-_ **(P.N.Ravindran, Judge)** _Sd/-_ **(R. Narayana Pisharadi, Judge)** _//True Copy//_ _P.A. To Judge_ ss