Kerala State Electricity Board Limited v. E. C. Suresh and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 18TH DAY OF FEBRUARY 2020 / 29TH MAGHA, 1941** **WA.No.1052 OF 2018** **AGAINST THE JUDGMENT IN WP(C) No. 171/2015 DATED 08-01-2018 OF THE HIGH COURT OF KERALA** ## **APPELLANTS/RESPONDENTS 1 AND 2 IN WPC** - **1 KERALA STATE ELECTRICITY BOARD REPRESENTED BY ITS SECRETARY (ADMINISTRATION, VYDHYUTHI BHAVANAM, PATTOM,TRIVANDRUM DIST-695004.** - **2 THE CHIEF ENGINEER (HRM) KERALA STATE ELECTRICITY BOARD LTD,VYDHYUTHI BHAVANAM, PATTOM, TRIVANDRUM DIST-695004.** **BY ADV. SMT.ANEETHA A.G., SC, KERALA STATE ELECTRICITY BOARD LIMITED** ## **RESPONDENTS/PETITIONER 1 AND 2 AND 3RD RESPONDENT IN WPC** - **1 E. C. SURESH S/O OF CHANDRASEKHARAN PILLAI, AGE 44 YEARS, SUB ENGINEER (TRAINEE) OR METER READER,ELECTRICAL SUB DIVISION, THIRUVALLA KSEBL,THIRUVALLA, PATHANAMTHITTA DIST-689101.** - **2 SEBASTIAN JOSEPH S/O T.D JOSEPH, AGE 40 YEARS,SUB ENGINEER(TRAINEE) OR METER READER,ELECTRICAL SECTION,THOTTABHAGOM KSEBL, THIRUVALLA, PATHANAMTHITTA DIST-689101.** - **3 MR HARINDRAN K.G. SUB ENGINEER, PULPALLI ELECTRICAL SECTION KSEBL, WAYANAD DIST-673579.** ## **BY ADV. SRI.V.SAJITH KUMAR** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 18.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A. No.1052 of 2018 2 ## **J U D G M E N T** ## _**Vinod Chandran, J.**_ The appellant is the Kerala State Electricity Board challenging the judgment of the learned Single Judge of this Court directing promotion of the petitioners as Sub Engineers giving them rank between serial numbers 723 and 724 in Exhibit P5 list dated 03.02.2011. 2. We have to notice the background facts: The first respondent was appointed as a Mazdoor and the second respondent was appointed as a Lineman Grade-II in 1992 and 1994. They were promoted and continued as Lineman Grade-I, while on 15.01.2005 there was a promotion list published of Meter Readers to which the feeder category was Lineman Grade-I. The respondents were not considered for such promotion for reason of they having not qualified the departmental test as on 07.02.2003. The petitioners challenged their denial of consideration pointing out that by the time the list came out, they became qualified. In Exhibit.P1 judgment, it was found that the petitioners were entitled to be promoted and also granted all W.A. No.1052 of 2018 3 consequential benefits. An appeal was filed by the Board which was disposed of by Exhibit P2, directing the Board to consider the respondents for promotion deeming them to have qualified the test as on the date of promotions carried out as per the list of 15.01.2005. The petitioners were so considered and were granted promotion notionally with effect from 26.04.2005 as is seen from Exhibit P3. Exhibit P3 was dated 28.02.2014 and in the meanwhile the respondents were promoted as Overseer Grade-II on 30.8.2006. Overseers Grade II post had a higher salary than that entitled to a Meter Reader. In the circumstances, there was no question of the petitioners being posted as Meter Readers in accordance with Exhibit P3 order. 3. In this context, we have to notice the changes brought in, to the feeder categories for promotion to the post of Sub Engineer. The only feeder category to the post of Sub Engineer was that of Overseer Grade- II. In 2000, the feeder category was specified to be Meter Reader, completely excluding Overseer Grade-II but however promoting all the Overseers Grade II at that point as Sub Engineer. Later again, in 2010 a 10% quota was given to Overseer Grade II for promotion to the post of Sub Engineer. In 2011, the quota has been again increased to 20% for Overseer Grade-II. In these W.A. No.1052 of 2018 4 circumstances, the petitioners at the relevant time ie; between 2000 and 2010, were in the post of Overseer Grade II, who could not have claimed for a promotion to the post of Sub-Engineer. They were denied promotion to the post of Sub Engineer since they were occupying posts of Overseer; after the feeder category was confined to the Meter Readers. However if they were promoted as they were rightly entitled to, they would have occupied the post of Meter Readers and would have then been entitled to claim further promotion to the post of Sub Engineer. The respondents claim hence arose from the fact that if they were promoted as Meter Readers, as per the list dated 15.01.2005, they would have been entitled to be later promoted and posted as Sub Engineer; which claim has been allowed by the learned Single Judge in the impugned judgment. 4. The learned Single Judge found that the respondents would be entitled to be promoted as Sub Engineer as on 03.02.2011. The objection of the Board is in so far as the respondents having no service in the post of Meter Reader for six years. The learned counsel for the petitioners placed before us a decision of the Hon’ble Supreme Court in **Union of India (UOI) and Ors. v. K.B.Rajoria** (2000) 3 SCC 562 which drew a distinction between service and experience. In **K.B.Rajoria's** case one Krishnamoorti was granted a W.A. No.1052 of 2018 5 notional promotion to the post of Additional Director General from 1995. The order was passed only in the year 1998 and hence, the notional promotion was retrospective in nature. When consideration was made to the post of Director General, Krishnamoorti was reckoned for such post and Rajoria came to the court on the ground that Rejoria also was entitled to be considered for notional promotion. However, no notional promotion having been granted to Rejoria, the Hon’ble Supreme Court found that he has no locus standi to seek consideration of his name for promotion to the post of Director General. The High Court, in fact, had found that both Krishnamoorti and Rejoria were not entitled to be considered for reason of even Krishnamoorti’s promotion being notional. The Hon’ble Supreme Court found that the High Court should have noticed that Rejoria did not challenge the consideration of Krishnamoorti and sought only notional promotion as granted to the other. In deciding the issue as to whether a notional promotion could lead to consideration for promotion, it was held so in paragraphs 18 and 19 which is extracted hereunder: _“Note 1 leaves no room for doubt that the word “service” means “qualifying service”, and Note2 makes it clear that in case of supersession actual service for the prescribed period is not required. This is in keeping with para 18.4.3 of the O.M. quoted earlier. As the_ W.A. No.1052 of 2018 6 _notional date of promotion of Krishnamoorti was 22.2.95 he was eligible to be considered for the post of Director General in 1999.”_ _“In the context of this case, the High Court erred in equating the words 'regular service' with 'actual experience' relying on the decision in Union of India and Ors. v. M. Bhaskar and Ors. MANU/SC/1156/1996: (1996) 4 SCC 416. In that case the eligibility criteria expressly was of “completion of 2 years' experience in Grade II.” The case is therefore entirely distinguishable.”_ 5. The distinction drawn by the Hon’ble Supreme Court was in so far as there being no equation of 'regular service' and 'actual experience'. When a notional promotion is granted, the person who has been granted the same gets all benefits but the pay and allowances. The pay and allowances were declined only for reason that employees having not discharged the higher duties in that post. However, his seniority in service is deemed from the date of his notional promotion and he is deemed to have commenced his regular service from the date of his notional promotion. In the present case also we see from the Rules of 1981, as seen from Ext.P11, that the requirement for promotion is 5 years of service as Lineman/II[nd] Grade Overseer and not hands on experience. Overseers as noticed above for a time were excluded from the feeder category. The respondents having been granted notional promotion with effect from 26.04.2005 has to be deemed to W.A. No.1052 of 2018 7 be in service as a Meter Reader from 26.04.2005. We do not find any reason to interfere with the judgment of the learned Single Judge and the Writ Appeal is, accordingly, dismissed. No order as to costs. **Sd/-** **K. VINOD CHANDRAN JUDGE** **Sd/-** pkk xxx **P.V. KUNHIKRISHNAN JUDGE** W.A. No.1052 of 2018 8 ## **APPENDIX** ## **APPELLANTS' ANNEXURES:** - **ANNEXURE A1:** **TRUE COPY OF THE RELEVANT PAGES OF SERVICE BOOK OF SRI. RASHEED S.P.** - **ANNEXURE A2: TRUE COPY OF THE RELEVANT PAGES OF SERVICE BOOK OF SRI.HAREENDRAN K.G.** ## **RESPONDENTS'ANNEXURES** - **ANNEXURE R1(a)** - **A TRUE COPY OF THE NOTIFICATION BY THE PUBLIC SERVICE COMMISSION DATED 8.2.2012 FOR THE POST OF SUB ENGINEER ELECTRICAL.** - **ANNEXURE R1(b) A TRUE COPY OF THE CLARIFICATION ORDER NO.DGEP-7(22)/2006-CD DATED 01.06.2007 ISSUED BY THE MINISTRY OF LABOUR AND EMPLOYMENT; GOVERNMENT OF INDIA.** - **ANNEXURE R1(c) A TRUE COPY OF THE ORDER NO.G.O.(GEN) NO.749/2019/EMPLOYMENT DATED 26.06.2019 ISSUED BY THE DEPARTMENT OF LABOUR AND SKILLS; GOVERNMENT OF KERALA.** - **ANNEXURE R1(d)** - **A TRUE COPY FO THE RELEVANT PAGES OF ORDER NO. EB2/SE(Ele.)/CCC 296/PROMOTION/2017 DATED 16.11.2017** - **ANNEXURE R1(e)** **A TRUE COPY OF THE BOARD ORDER (FTD) NO.3069/2017 (Estt.II/2089/2017) dated 08.12.2017.** - **ANNEXURE R1(f)** **A TRUE COPY OF THE GRADATION LIST ISSUED AS PER ORDER NO. EB.Gr.3/MR/2011-12 DATED 16.05.2012.** - **ANNEXURE R1(g)** **A TRUE COPY OF THE BOARD ORDER NO.M.IV3600/57 DATED 28.12.1967.**