K.C. Dileep Kumar v. Kerala State Electricity Board Ltd.

WP(c).No.24477/2017-H 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **WEDNESDAY, THE 05TH DAY OF FEBRUARY 2020 / 16TH MAGHA, 1941** ## **WP(C).No.24477 OF 2017(H)** ## **PETITIONER:** **K.C.DILEEP KUMAR AGED 46 YEARS SUB ENGINEER (CIVIL), KERALA STATE ELECTRICITY BOARD LTD., INVESTIGATION CIRCLE, VYDYUTHI BHAVANAM, THRISSUR.** **BY ADVS. DR.K.P.SATHEESAN (SR.) SRI.P.MOHANDAS (ERNAKULAM) SRI.MUHAMMED IBRAHIM ABDUL SAMAD SRI.K.SUDHINKUMAR SRI.S.VIBHEESHANAN** ## **RESPONDENTS:** **1 KERALA STATE ELECTRICITY BOARD LTD. REPRESENTED BY ITS CHAIRMAN, VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM - 695 004. 2 THE CHIEF ENGINEER (H.R.M), KERALA STATE ELECTRICITY BOARD LTD., VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM - 695 004.** **ADDL.3 NELVI.P.C., SUB ENGINEER (CIVIL), KERALA STATE ELECTRICITY BOARD LTD., TRANSMISSION CIRCLE, VYDYUTHI BHAVANAM, THRISSUR-680 004. (IMPLEADED AS PER ORDER DATED 05.02.2020 IN I.A.NO.13155/2017) R1 BY SRI.M.K.THANKAPPAN, SC, KERALA STATE ELECTRICITY BOARD LIMITED** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(c).No.24477/2017-H 2 ## _**P.V.ASHA, J.**_ -------------------------W.P(C) No.24477 of 2017-H ------------------------------------------- _Dated this the 5[th] day of February, 2020_ ## _**JUDGMENT**_ The petitioner is aggrieved by the rejection of his representation requesting to assign him seniority as Sub Engineer with effect from the date of his appointment as Foreman Gr II. 2. Petitioner was appointed as a Foreman Gr.II in the Kerala State Electricity Board (KSEB) on 24.4.1995 on advice by the Kerala Public Service Commission. The posts of Foreman (Civil) and Sub Engineer (Civil) were integrated w.e.f 29.08.2000, based on which the petitioner became Sub Engineer (Civil). It is stated that the integration was on the basis of Ext.P1 long term settlement entered into between the recognised trade unions and the KSEB as provided under the staff pattern of executive staff provided in Article VII. Sub clause 5 thereof provided that the existing Foremen (Civil) who were appointed through Kerala Public Service Commission would be integrated with Sub Engineer (Civil) and the post of Foreman (Civil) would be abolished on the date of the WP(c).No.24477/2017-H 3 settlement. It is stated that there were only 5 Foremen (Civil) who were integrated as Sub Engineer (Civil). Ext.P2 order was issued on the basis of the settlement integrating the petitioner and 4 others as Sub Engineer (Civil) w.e.f 29.8.2000. It was ordered that they would be placed junior to the juniormost Sub Engineer (Civil) Sri R.Renjith appointed as per Board Order dated 22.05.2000. The petitioner thereupon submitted Ext.P3 representation requesting to place him reckoning his service from the date on which he entered service, namely 24.4.1995. As no action was taken, the petitioner had filed W.P(c).No.33596/2010 which was disposed of as per Ext.P7 judgment dated 3.4.2017 directing the 2[nd] respondent to consider the claim of the petitioner in the light of the judgment in _**Union of India v. Dharam Pal and others**_ [(2009) 4 SCC 170]. By Ext.P8 order, the 2[nd] respondent rejected the representation stating that Foreman (Civil) did not have any promotional avenue though the scale of pay of both the posts - Foreman (Civil) and Sub Engineer (C), as well as the qualification prescribed were identical; prior to the integration both the cadres were entirely different with separate and different channels for recruitment, promotion etc; the integration was effected only from 29.08.2000. It was found that it would be unfair to disturb the settled seniority of the other existing Sub Engineers owing to this integration. It was also stated that the Board took the decision with respect to the integration taking into consideration the lack of further promotion prospects for the Foremen (Civil). Therefore, even though the scale of pay of both the cadres and the WP(c).No.24477/2017-H 4 qualification prescribed for the posts were similar or identical, seniority in the cadre of Sub Engineer (Civil) cannot be assigned to the petitioner with effect from the date of his joining as Foreman. Ext.P8 is under challenge in the Writ Petition. 3. According to the petitioner, there is no provision in the long term settlement Ext.P1 which provides that on integration, the Foremen (Civil) would be placed as junior to the junior most Sub Engineers (Civil). According to the petitioner, it is only the decision taken by the 2[nd] respondent that the Foremen (Civil) would be placed as junior to the juniormost Sub Engineers (C) as on the date of integration namely, 29.08.2000. According to him, when the scale of pay as well as the qualification prescribed for both the posts are the same, there is no basis for denying persons like the petitioner the benefit of seniority with effect from the date on which they entered service as Foreman (Civil). According to him, they are placed below the Sub Engineers who joined the KSEB after more than 10 years of their appointment as Foremen (Civil), based on the integration. 4. The respondents have filed a counter affidavit justifying their action in Ext.P8 order. It is stated that there were only 5 Foremen (Civil) Gr.II who were recruited through the P.S.C. The promotional avenue from the cadre of Foreman II was to the cadre of Foreman I and there was no further promotion prospects to them. It is stated that on the basis of request made by the Foreman (Civil) Gr II, like the petitioner and others, the Board decided to integrate the existing Foreman (Civil) with the cadre of Sub Engineer (Civil) and to abolish the post of Foreman WP(c).No.24477/2017-H 5 (Civil). It is stated that on the basis of the settlement arrived at in Ext.P1 the 2[nd] respondent issued Ext.P2 order integrating the 5 posts of Foreman (Civil) with Sub Engineer (Civil) and assigning them seniority below the juniormost Sub Engineer. According to the respondents, W.P(c).No.26054 of 2006 filed by other 2 integrated Sub Engineers is already dismissed by this Court on 13.10.2010. 5. The petitioner has filed a reply affidavit reiterating that there is nothing in the settlement indicating that they would be assigned seniority only with effect from the date of integration. 6. According to the learned Senior Counsel for the petitioner, persons like the petitioner are not benefited even after integration as Sub Engineer. It is pointed out that the grade promotion granted to them was admissible even if they continued as Foreman (Civil). 7. The learned Standing Counsel pointed out that similar cases filed by other integrated Sub Engineers were already dismissed by this Court. 8. Having considered the pleadings and the contentions advanced by the learned Senior Counsel for the petitioner and the learned Standing Counsel, it is seen that the petitioner was appointed on the basis of a separate process of recruitment to the post of Foreman (Civil) though it was having the same scale of pay and qualification as that of Sub Engineer. It is seen that there was no promotional avenue available for Foreman (Civil) after they get promoted as Gr.I and it is also seen that it is on the basis of the request made by the petitioner and WP(c).No.24477/2017-H 6 other Foremen (Civil) that the integration was effected. But for the integration the petitioner would have continued as Foreman (Civil) Gr II/Gr I. By way of integration they are absorbed in a cadre where there are several employees already working in that cadre with right to seniority in accordance with rules. The petitioner was integrated to that cadre from another cadre on a particular day. Though such induction was after he rendered service for about 5 years as Foreman (Civil) Grade II, the entry of a new person into a different cadre would definitely affect the incumbents in the other cadre as on that day, even if it is on integration. 9. Even though the learned counsel for the petitioner relied on the judgment of the Apex Court in _**Union of India v. Dharam Pal and others**_ [(2009) 4 SCC 170], I find that it relates to reckoning of adhoc service as against fresh hands and the said judgment is rendered after considering the provisions contained in the Indian Railways Establishment Manual. The said judgment would not be applicable in the case of the petitioner, who got integrated to another cadre, based on his request, followed by the provisions in the settlement. The said judgment also relates to appointment as well as of confirmation. In the present case, no such issue is involved. 10. Therefore, I am of the view that unless there is a specific provision in the settlement to the effect that the integration would be with effect from the date on which the petitioner was appointed or that on integration, seniority would be reckoned from the date of entry in service in the post of Foreman (Civil), the WP(c).No.24477/2017-H 7 petitioner cannot have any valid claim to get the service rendered by him as Foreman (Civil) reckoned for the purpose of seniority. Otherwise it will adversely affect those in the cadre of Sub Engineers who were in service as on the date of integration. Therefore, I do not find any illegality in Ext.P8 Order. In the above circumstances, the Writ Petition is dismissed. _Sd/-_ _**(P.V.ASHA, JUDGE)**_ _rtr/_ WP(c).No.24477/2017-H 8 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE RELEVANT PAGES OF THE LONG TERM SETTLEMENT DATED 29.8.2000. EXHIBIT P2 TRUE COPY OF THE ORDER NO.EBC1II/SE/T&P/2000 DATED 30.11.2000 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P3 TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER DATED 5.6.2001. EXHIBIT P4 TRUE COPY OF THE ORDER ISSUED BY THE DEPUTY CHIEF ENGINEER, INVESTIGATION CIRCLE, VYDYUTHI BHAVANAM, THRISSUR DATED 5.5.2005. EXHIBIT P5 TRUE COPY OF THE RELEVANT PAGES OF THE PROVISIONAL SENIORITY LIST PUBLISHED BY THE 2ND RESPONDENT DATED 20.1.2007. EXHIBIT P6 TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 16.8.2010. EXHIBIT P7 TRUE COPY OF THE JUDGMENT DATED 3.4.2017 IN WPC.NO.33596/2010. EXHIBIT P8 TRUE COPY OF THE ORDER NO.GR. (C)/SE/WPC.33596/10 DATED 12.7.2017 ISSUED BY THE 2ND RESPONDENT.**