Johnson D. & Ani George & S. Kishore Kumar v. Kerala State Electricity Board

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** ## **WEDNESDAY, THE 23RD DAY OF JULY 2014/1ST SRAVANA, 1936** ## **WP(C).No. 23665 of 2011 (G)** ## **----------------------------** ## **PETITIONER(S) :** **--------------------------** **1. JOHNSON D., OVERSEER, KSEB ELECTRICAL SECTION PUTHOOR.** **2. ANI GEORGE OVERSEER KSEB ELECTRICAL SECTION KOTTARAKKARA.** **3. S. KISHORE KUMAR OVERSEER, KSEB ELECTRICAL SECTION KOTTIYAM, KOLLAM DISTRICT.** ## **BY ADV. SRI.S.ABDUL RAZZAK** ## **RESPONDENT(S) :** ## **----------------------------** **1. KERALA STATE ELECTRICITY BOARD REPRESENTED BY ITS SECRETARY KERALA STATE ELECTRICITY BOARD VYDYUTHI BHAVAN, PATTOM THIRUVANANTHAPURAM - 695 001.** **2. THE CHIEF ENGINEER, HRM KERALA STATE ELECTRICITY BOARD VYDYUTHI BHAVAN, PATTOM THIRUVANANTHAPURAM - 695 001** **3. SREEGANESAN PILLAI SUB ENGINEER (ELE.) GENERATION SUB DIVISION SEETHATHODE, PATHANAMTHITTA DISTRICT-689645.** **R1 & R2 BY ADV. SRI.K.S.ANIL, SC, KSEB R3 BY ADV. SRI.C.UNNIKRISHNAN (KOLLAM)** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mn** **...2/-** ## **WP(C).No. 23665 of 2011 (G)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS :** **EXT.P1 : COPY OF THE RELEVANT PORTION OF THE SETTLEMENT. EXT.P2 COPY OF THE CERTIFICATE OF 1ST PETITIONER. EXT.P3 COPY OF THE CERTIFICATE OF 2ND PETITIONER. EXT.P4 COPY OF THE CERTIFICATE OF 3RD PETITIONER. EXT.P5 COPY OF THE RELEVANT PORTION OF THE GRADATION LIST OF LINE MAN GRADE I. EXT.P6 COPY OF THE LIST OF PROMOTION OF LINE MAN GRADE I AS OVERSEERS.** **EXT.P7 COPY OF THE CIRCULAR DATED 16.9.2004. EXT.P8 COPY OF THE APPLICATION OF THE 1ST PETITIONER. EXT.P9 COPY OF THE OBJECTION OF THE 3RD PETITIONER TO EXT. P6. EXT.P10 COPY OF THE JUDGMENT IN WP(C) NO. 11715/2005. EXT.P11 COPY OF THE RELEVANT PORTION OF THE ORDER OF THE 2ND RESPONDENT DATED 3.2.2011. EXT.P12 COPY OF THE OBJECTION OF THE 1ST PETITIONER TO EXT. P11. EXT.P13 COPY OF THE OBJECTION OF THE 2ND PETITIONER TO EXT.P11.** **(Contd...)** **WP(C).No. 23665 of 2011 (G)** **EXT.P14 PHOTOCOPY OF KSEB ORDER DATED 28.2.2014.** **EXT.P15 PHOTOCOPY OF PETITIONERS PROVISIONAL PROMOTION ORDER DT. 25-8-2006.** **RESPONDENT'S EXHIBITS : NIL** **//TRUE COPY//** **P.S. TO JUDGE** **Mn** ## **P.R. RAMACHANDRA MENON, J.** .............................................................................. ## **W.P.(C)No.23665 OF 2011** ......................................................................... **Dated this the 23[rd] July, 2014** ## **J U D G M E N T** The petitioners have approached this Court with the following prayers: _“A. Call for the records relating to Ext.P1 to P13 from the respondents 1 and 2,_ _B. Quash Ext.P6 and P11 by a writ of certiorari or an other writ or direction to the extent that it orders the promotion of persons who are juniors to the petitioners including the third respondent;_ _C. Issue a writ of mandamus or any other writ, direction or order to the respondents 1 and 2 to order promotions to the post of meter readers and sub engineers thereafter including those filled up under Ext. P6 strictly in accordance with Ext.P5 Gradation list._ _D. Such other relief's which is deemed to be fit and proper to this Honourable Court in the facts and circumstances of the case.”_ 2. The challenge is mainly with regard to Ext.P6, whereby petitioners' juniors have been promoted to the post of 'Meter Reader' inspite of the better credentials/seniority of the petitioners over the junior like 4[th] respondent, as reflected from Ext.P5 Gradation List. Subsequent promotion by way of Ext.P11 **2** ## **W.P.(C)No.23665 OF 2011** to the post of 'Sub Engineer (Electrical)' from the cadre of Meter Readers is also under challenge, pointing out that the persons sought to be promoted are juniors to the petitioners . ## 3. Sequence of events is as follows: Petitioners herein joined the service of the KSEB and were working as Lineman Grade I. Seniority of Lineman Grade I stands finalised as per Ext.P5 Gradation List, wherein the petitioners have been assigned the position at Sl. Nos. 2920, 2957 and 2962, whereas the third respondent herein, who is much junior to the petitioners, is below at Sl. No. 2965. The said Gradation list is as on 01.01.2004. The next promotion post of Line Man Grade I is that of Meter Reader and in the course of time, eligible Meter Readers will get promotion as Sub Engineer. It is stated that, by virtue of the relevant rules governing the field of promotion/recruitment, the post of Meter Readers had to be filled up on the basis of a ratio of 75:25% between the direct recruits and promotees (from the cadre of Lineman Grade I). A long term settlement was entered into between the Management of the Board and workers represented by various Trade Unions. By virtue of Clause 8 under Article VII, the ratio was sought to **3** ## **W.P.(C)No.23665 OF 2011** be refixed as 60:40 in the place of 75:25, subject to sanction from the PSC. Admittedly, the PSC did not grant concurrence, by virtue of which, the posts had to be filled up on the basis of the existing ratio of 75:25. In view of large number of vacancies of Meter Readers in the Department, Ext.P7 notification was issued on 16.09.2004 inviting applications from eligible /qualified hands in respect of 25% quota earmarked for inservice candidates. As per the prescribed norms, the basic qualification is pass in 8[th] standard with technical qualification of relevant trade certificate. According to the petitioners, they are having the requisite qualifications, having passed 8[th] standard and also having obtained necessary Trade Certificate as borne by Exts.P2 to P4 issued on 15.05.2003. Though all the petitioners submitted necessary applications in this regard, their candidature was not considered and promotion was denied to them, alleging that they had acquired qualification only subsequently and that they were not qualified as on 7.2.2003, which is stated as the cut off date (with reference to date of occurrence of vacancy.) The case of the petitioners is that , prescription of such cut off date is per se wrong and illegal in all respects, in view of the law declared by **4** ## **W.P.(C)No.23665 OF 2011** this Court as per Ext.P10 judgment in W.P(C) 11715 of 2005. It is stated that this Court relied on the declaration of law already made in this regard as per judgment dated 10.02.2009 in W.P. (C)10602 of 2006 and some other cases as well. Referring to the subsequent proceedings including Ext.P14 produced along with the reply affidavit dated 06.07.2014, the learned Counsel for the petitioners contends that the issue was kept alive all throughout and that the petitioners ought to have been considered and given similar benefits in tune with the directions given by this Court as per Ext.P10 judgment 4. In view of arbitrary exercise pursued by the Board, the third respondent (junior) has been given promotions as Meter Reader and subsequently as Sub Engineer; whereas the petitioners, after denial of promotion as Meter Readers have now been given posting quite recently as “Sub Engineer Trainees”. This in turn is under challenge in this writ petition. 5. A counter affidavit has been filed on behalf of the respondent Board seeking to sustain the cut off date prescribed, stating that the qualification has to be reckoned with reference to the date of occurrence of vacancy. All the vacancies have **5** ## **W.P.(C)No.23665 OF 2011** arisen on 07.02.2003 and hence the relevancy for the cut off date. It is stated that the judgment rendered by the learned Judge in W.P.(C) No.10602 of 2006, dated 10.02.2009 was sought to be challenged by filing W.A.No. **1314 of 2009** wherein, the contentions raised by the Board were accepted and accordingly, the judgment passed by the learned Single Judge was set aside. Eventhough SLP No.33330 of 2009 was preferred by the aggrieved party, the same came to be dismissed as per the verdict passed by the Apex Court on 25.10.2010 and this being the position, Ext.P10 is not liable to be acted upon or relied on to extend the relief sought for to the petitioners; more so when the Board has already filed an appeal therefrom and the same is pending. 6. After hearing both the sides and after going through the materials on record, this Court finds that, after preparation and finalisation of the Gradation List with regard to the post of Lineman Grade I, promotions were effected by the Board giving postings and promotions to the qualified employees as Meter Readers under 25% quota vide Ext.P6 dated 15.01.2005. Admittedly, the petitioners were never included in the said list of **6** ## **W.P.(C)No.23665 OF 2011** promotions and the petitioners did not have any grievance at that point of time. They never chose to approach this Court by filing a writ petition, unlike the petitioners in Ext. P10 case, who approached this Court in the year 2005 itself. It was in the course of such exercise that the third respondent was given promotion as Meter Reader for the reason that the third respondent had acquired necessary qualification as on the date of occurrence of vacancy, i.e. on 07.02.2003. Further promotion, as far as Meter Reader is concerned, is to the post of Sub Engineer (Electrical) and this was caused to be effected by giving promotions to the eligible hands as per the proceedings of the Board; which came to be scrutinised subsequently by the Board in the light of the relevant rules/proceedings, as per Ext.P11 order dated 03.02.2011 7. The petitioners woke up from their slumber and submitted Exts.P12 and P13 representations dated 25.03.2011 and 30.03.2011 respectively, only after passing Ext. P11, referring to denial of promotion to the post of 'Meter Reader' earlier and seeking to rectify the anomaly. The said application for rectification of alleged anomaly was forwarded by the **7** ## **W.P.(C)No.23665 OF 2011** Executive Engineer to the Chief Engineer (HRM) as per the proceedings dated **31.03.2011** (forming part of Ext.P12). This by itself shows that the petitioners were not anxious of their rights, if any, earlier and that it was only after giving promotion to the eligible/qualified Meter Readers to the post of Sub Engineers, (Electrical); that the petitioners wanted to set things right by challenging the promotion given to the third respondent as Meter Reader and the subsequent promotion as Sub Engineer (Electrical) by filing the present writ petition. This being the position, this Court finds that the alleged cause of action does not survive in so far as petitioners are concerned; more so in view of the law declared by the Apex Court as per the decision in ## _**Rabindra Nath vs. Union of India**_ **(AIR 1970 SC 470 ).** 8. With regard to the merits involved, particularly with reference to the alleged arbitrary fixation of the cut off date as 07.02.2003, it is true that judgment was rendered by this Court as borne by Ext.P10, holding that fixation of such cut off date was bad in law. Obviously, it has been referred to in paragraph 2 of the said judgment that such a finding was rendered placing reliance on the judgment in W.P.(C)10602 of 2006 and some **8** ## **W.P.(C)No.23665 OF 2011** other judgments as well. It is the specific case of the Board that appeal was preferred as W.A. 1314 of 2009 before the Division Bench challenging the judgment dated 10.02.2009 in W.P(C) 10602 OF 2006. After hearing both the sides, the appeal preferred by the Board was allowed and the judgment in W.P.(C) No. 10602 of 2006 was set aside, sustaining the action of the Board in prescribing the cut off date as 07.02.2003. The observation made by the Bench in paragraphs 3 and 4 are relevant, which are extracted below : _“3. Mr. Asok M. Cheriyan appearing for the appellants submitted that promotions in the KSEB are governed by Rule 28 of KS & SSR as the said Rule had been adopted by the KSEB by virtue of its regulation making power under Section 79 of the Electricity Supply Act, 1948. So the claim of the incumbent has to be considered with reference to the date of occurrence of vacancies. So even if Ext.P2 notification is silent, the statutory Rules will govern the field. Therefore, the decision of the learned Single Judge is liable to be reversed, it is submitted. Sri D. Sreekumar, learned Counsel for the 1[st]_ **9** ## **W.P.(C)No.23665 OF 2011** _respondent/writ petitioner, submitted that since no cut of date was notified in Ext.P2, everyone qualified on the last date for submission of applications as per Ext.P2 were entitled to be considered for promotion. Learned Counsel for the additional respondents also supported the above submission._ _4. The KS & SSR have been adopted by the KSEB by virtue of its regulation making power under section 79 (c) of the Electricity Supply Act, 1948. As per the Rules contained in KS & SSR governing promotion, the claim of the incumbent in the feeder category has to be considered with reference to the date of occurrence of vacancy. There are several decisions of the Apex Court and of this Court that even if there is a delay from the part of the appointing authority to order promotion, the claim has to be considered with reference to the date of occurrence of vacancy.”_ 9. In the above circumstance, this Court finds that the law stands well settled by virtue of the verdict passed by the Division Bench in **W.A.1314 of 2009** and the subsequent dismissal of SLP by the Apex Court **(SLP.33330/2009)** . As it stands so, this **10** ## **W.P.(C)No.23665 OF 2011** Court finds that the petitioners are not entitled for any relief as sought for . Interference is declined and the writ petition is dismissed. 10. In view of the fact that Ext.P14 order is not an issue under challenge, nothing is expressed with regard to correctness and sustainability of the said order, which was passed based on the various other judgments as referred to therein. 11. It is also brought to the notice of this Court that the respondent Electricity Board have already challenged the verdict passed by the learned Single Judge vide Ext.P10 judgment in W.P.(C)11715/2005 by way of W.A.1047 of 2010. After referring to the judgment in W.A.1314 of 2009, the appeal preferred by the Electricity Board was allowed. However, it was observed in the last paragraph as follows: _"Having regard to the observation of the Division Bench as stated above at paragraph 4 of the judgment, if the claim of the present respondents has to be considered with reference to the date of occurrence of vacancy, the appellant Board has to take into consideration the case of the respondents/petitioners subsequent to February, 2004. If any vacancy has come_ ## **W.P.(C)No.23665 OF 2011** **11** _into existence, the case of the respondents/petitioners has to be considered against such vacancy provided they are otherwise eligible, including departmental test and roster"_ 12. In view of the observation made by the Division Bench of this Court in W.A.1047/2010, it is made clear that, the claim of the petitioners for promotion to the subsequent vacancies, if any shall be considered in the light of the benefit flowing from the aforesaid judgment passed by the Division Bench. 13. The learned Counsel for the petitioners submits that all promotions given so far are strictly provisional under Rule 31(a) (l) of Part II KS & SSR and that the seniority in the feeder category of Meter Reader has not been finalised so far. If the issue has not become final, it will be open for the petitioners to raise the challenge, if it is sustainable in accordance with the relevant provisions of law. ## **P.R.RAMACHANDRA MENON JUDGE** _lk_