K.S. Jayin v. Kerala State Electricity Board

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **WEDNESDAY, THE 5TH DAY OF APRIL 2017/15TH CHAITHRA, 1939** **WP(C).No. 9633 of 2008 (V) ---------------------------** **PETITIONER(S): -------------** **K.S. JAYIN, S/O. K.C.SKARIA, AGED 44 YEARS, ASSISTANT ENGINEER (CIVIL), NERIAMANGALAM EXTENSION SCHEME, THATTEKKANNI P.O., IDUKKI-685 602, RESIDING AT QUARTERS NO.C-24, KSEB COLONY, KALLARKUTTY, ADIMALI (VIA), PIN-685562.** ## **BY ADV. SRI.P.P.JNANASEKHARAN** **RESPONDENT(S):** **--------------** **1. THE KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDHYUTHI BHAVAN,, PATTOM, THIRUVANANTHAPURAM.** **2. THE CHIEF ENGINEER (HUMAN RESOURCES MANAGEMENT), K.S.E.B., VYDHYUTHI BHAVANAM, TRIVANDRUM.** **3. SRI.C.A. PADMANABHAN, ASSISTANT EXECUTIVE ENGINEER, GENERAL CIRCLE, K.S.E.B., MOOLAMATTOM, IDUKKI DISTRICT. R1 & 2 BY ADV. SRI. ASOK M.CHERIYAN, SC, KSEB R1 & R2 BY ADV. SRI.K.S.ANIL, SC, KSEB R1 & 2 BY ADV. SRI.PULIKOOL ABUBACKER, SC, KSEB R3 BY ADV. DR.K.P.SATHEESAN (SR.) R3 BY ADV. SRI.M.R.JAYAPRASAD R3 BY ADV. SRI.P.MOHANDAS (ERNAKULAM) R3 BY ADV. SRI.ANOOP.V.NAIR R3 BY ADV. SRI.S.VIBHEESHANAN R1-R2 BY ADV. SRI.M.K.THANKAPPAN, SC BY ADV.SMT.ANITHA, SC, KSEB** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-02-2017, ALONG WITH WPC. 4173/2009, WPC. 34933/2010, THE COURT ON 05/04/2017 DELIVERED THE FOLLOWING:** ## **WPC NO.9633/08** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **EXT.P1: PHOTOCOPY OF THE ADVICE MEMO ISSUED BY THE SECRETARY, KERALA PUBLIC SERVICE COMMISSION DTD. 26.8.1994.** **EXT.P1(a): PHOTOCOPY OF THE RELEVANT EXTRACT OF ADVICE LIST OF EXT.P1.** **EXT.P2: PHOTOCOPY OF THE ORDER OF DECLARATION OF PROBATION AS ASSISTANT ENGINEER DATED 6.6.1998.** **EXT.P3: PHOTOCOPY OF THE PROVISIONAL SENIORITY LIST OF SUB ENGINEERS DTD. 28.10.1996.** **EXT.P3(a): PHOTOCOPY OF PAGE NO.1 OF THE PROVISIONAL SENIORITY LIST OF ENGINEERING GRADUATES.** **EXT.P3(b): PHOTOCOPY OF THE PAGE NO.4 OF THE LIST. EXT.P3(c): PHOTOCOPY OF THE PAGE NO.5 OF THE LIST.** **EXT.P4: PHOTOCOPY OF THE PROVISIONAL SENIORITY LIST OF ENGINEERING GRADUATES (CIVIL) APPOINTED AS ASST.ENINEER IN THE 10% QUOTA DATED 12.8.1999.** **EXT.P4(a): PHOTOCOPY OF THE PAGE 3 OF THE SENIORITY LIST ATTACHED TO EXT.P4.** **EXT.P5: PHOTOCOPY OF THE JUDGMENT DTD.29.3.2006 IN OP NO.15051/2000.** **EXT.P6: PHOTOCOPY OF THE JUDGMENT IN WA NO.390/2007. EXT.P7: PHOTOCOPY OF THE JUDGMENT DTD 17.9/2007 IN OP 25249/2007.** **EXT.P8: PHOTOCOPY OF THE ORDER OF THE 2ND RESPONDENT.** **EXT.P9: PHOTOCOPY OFTHE JUDGMENT DT 6.2.2008 IN CCC NO.1800 OF 2007.** **WPC NO.9633/2008** **-2-** **EXT.P10: PHOTOCOPY OF THE JUDGMETN DTD 11.8.2006 IN WPC 7622 OF 2006.** **EXT.P11: PHOTOCOPY OF THE LETTER DTD. 21.7.2007 OF THE 2ND RESPONDENT.** **EXT.P12: PHOTOCOPY OF THE ORDER DTD 27.2.2008.** **EXT.P13: PHOTOCOPY OF THE LETTER DTD 6.12.2007 ISSUED BY THE SECRETARY, MINISTRY OF POWER, CONTINUANCE OF K.S.E.B.** **EXT.P15: PHOTOCOPY OF THE ORDER DATED 31.5.2008 OF THE 2ND RESPONDENT ISSUING THE SENIORITY LIST. EXT.P15(a): PHOTOCOPY OF THE SENIORITY LIST.** ## **//True Copy//** **PS to Judge** **Rp** ## **A.M. SHAFFIQUE, J.** =============== W.P. (C) Nos. 9633/08, 4173/09 & 34933/2010 ====================== Dated this, the 5[th] day of April, 2017 ## **J U D G M E N T** The above writ petition concerns a similar issue and are heard and decided together. 2. In WP(C) No. 9633/2008, petitioner challenges Ext.P8 and seeks for a declaration that the incumbents in terms of Ext.P1, PSC advice are governed by Rule 27(c) of the Kerala State and Subordinate Services Rules Part II (KS & SSR Part II) in the matter of seniority, for a declaration that Exts.P5 and P6 are applicable to the petitioner and other incumbents and for a direction to respondents 1 and 2 to promote the petitioner as Assistant Executive Engineer. 3. The short facts involved in the writ petition would disclose that the petitioner was working as Assistant Engineer (Civil) under the Kerala State Electricity Board (KSEB). He was advised for appointment as Sub Engineer along with 149 other candidates by the Kerala Public Service Commission (KPSC) as per advice dated 26/8/1994. Ext.P1 is the advice memo issued to the petitioner. He WP(C) No. 9633/08 & conn.cases -:2:- was Sl.No.16 in the list of 150 candidates advised as per Ext.P1. Petitioner was promoted to the post of Assistant Engineer w.e.f. 22.5.1996. He completed probation on 21/5/1998. Ext.P2 is the order declaring probation of the petitioner in the cadre of Assistant Engineer. The qualification and method of appointment to the post of Assistant Engineer as per rules is in the ratio 5:3:2 between Engineering Graduates, Diploma holders and certificate holders. Out of the 50% earmarked for Engineering candidates, 40% is filed up by direct recruitment from open market and 10% of the vacancies by direct recruitment among the Engineering graduates who are under the service of the Board. Petitioner was recruited and posted in the 10% quota. 4. A provisional seniority list of Sub Engineers was published by the Board on 28/10/1996 for the period from 1/1/94 to 31/12/95. Petitioner's name was at Sl.No.527. Ext.P3 is the said list and the relevant extracts are produced as Exts.P3(a), P3(b) and P3(c) wherein the 3[rd] respondent was shown at Sl.No.528. On 12/8/99, another provisional seniority list of Engineering Graduates (Civil) appointed as Assistant Engineer (Civil) in the 10% quota and eligible for appointment in the 10% quota was WP(C) No. 9633/08 & conn.cases -:3:- published as Ext.P4 and the relevant extract is Ext.P4(a). According to the petitioner, contrary to Ext.P3, petitioner was placed at Sl.No.30 below several of his juniors as per Exts.P1 and P3. On 19/6/2000, Sl.No.110 Smt.Jeena George in Ext.P1 was promoted as Assistant Executive Engineer superseding many of her seniors including the petitioner. The 3[rd] respondent approached this Court by filing OP No.15051/2000 which came to be allowed as per judgment dated 29/3/2006 and the person who challenged was promoted w.e.f. 19/6/2000 the date of promotion of his junior as Assistant Executive Engineer. Following the said judgment, several other Original Petitions and Writ Petitions were disposed of on 31/8/2006 and 25/10/2006. It is stated that though the petitioner requested the respondents by written representation to promote him as Assistant Executive Engineer in the light of the judgments aforesaid, the said requests were ignored. Petitioner places reliance upon judgment in WA No. 390/2007 which came to be dismissed by this Court confirming the judgment in OP No.15051/2000. 5. Since nothing was done in the matter, petitioner filed WP(C) No. 25249/2007 before this Court which was disposed of by WP(C) No. 9633/08 & conn.cases **==> picture [21 x 9] intentionally omitted <==** judgment dated 17/92007 when the respondent undertook to finalise the seniority list of Engineering Graduates (Civil) within a period of six months from the date of the judgment. It was also observed that pending finalisation of the seniority list, petitioner may be provisionally promoted within a period of six weeks from the date of receipt of the judgment. Nothing transpired and a contempt case came to be filed as COC No.1800/2007. Contempt case was closed without prejudice to the right of the petitioner to initiate action against Annexure R1(a). Annexure R1(a) is produced as Ext.P8. Still nothing has been done in the matter and therefore the petitioner had approached this Court challenging Ext.P8. In Ext.P8, the Board had observed that since there is no vacancy of Assistant Executive Engineer (Civil) under Degree quota and the Board has taken a decision to revise the seniority list of Assistant Engineers in 10% quota, keeping in view the provisions of Rule 27(c) of KS & SSR, the Board is not in a position to promote the petitioner to the cadre of Assistant Executive Engineer (Civil) under Degree quota before finalisation of the seniority list. The contention urged by the petitioner is that all the petitioners and respondents in OP No. 15051/2000 and WP(C) No. 9633/08 & conn.cases **==> picture [21 x 9] intentionally omitted <==** connected cases were advised for appointment as Sub Engineers by the same advice. Hence, _interse_ seniority is governed by Rule 27(c) of the KS & SSR Part II. Therefore, the seniority of the petitioner over the 3[rd] respondent being clear, he has a legal right to get promotion w.e.f. the date of promotion of his immediate junior, the 3[rd] respondent. 6. In the counter affidavit, filed on behalf of the 2[nd] respondent, it is stated that the petitioner belong to Assistant Engineer (Civil) under the 10% degree quota. Next promotion to the cadre of Assistant Executive Engineer (Civil) is done in the ratio 3:1 between degree quota and diploma quota. The sanctioned strength of Assistant Executive Engineer (Civil) is 164 out of which 123 are set apart for degree holders and 41 for diploma holders. The present working strength under the degree quota comes to 169 as if there are no vacancies in the degree quota. Further, numbers of Assistant Executive Engineers (Civil) are working as surplus in degree quota and therefore the Board is not in a position to consider the prayer of the petitioner to promote him as Assistant Executive Engineer (Civil) before finalisation of the seniority list. WP(C) No. 9633/08 & conn.cases -:6:- 7. Petitioner filed IA No.9973/08 producing Exts.P15 and P15(a). Ext.P15 is a revised seniority list dated 31/5/2008. Exts.P15 and P15(a) are the proceedings of the Chief Engineer (HRA) preparing revised seniority list and according to the petitioner, it is in confirmity to the directions of this Court in Exts.P5 and P6 judgments. In Ext.P15, the 3[rd] respondent is at Sl.No.18 and the petitioner is at Sl.No.17. Therefore, it is prayed that the 2[nd] respondent may be directed to correct the anomaly superseding an eligible senior and for promoting him as Assistant Executive Engineer (Civil). 8. In WP(C) No. 4173/2009, the petitioners claim that they are also persons who had been appointed in the 10% graduate quota as Assistant Engineers on 13/7/95, 3/8/95 and 13/7/95 respectively. They were initially appointed as Sub Engineers along with 147 others as per PSC advice dated 26/8/1994. It is contended that some of their juniors were promoted ignoring the date of advice and reckoning the actual date of joining. The 3[rd] petitioner filed OP No. 3262/01. This Court by judgment dated 31/8/2006 observed that the Board has to follow Rule 27(c) of the KS & SSR Part II and accordingly allowed WP(C) No. 9633/08 & conn.cases ## -:7:- the original petition directing the Board to promote the petitioners in the said case as Assistant Executive Engineers w.e.f. the date on which 3[rd] respondent was promoted as Assistant Executive Engineer. It is submitted that pursuant to the said direction, promotion was given as Assistant Executive Engineers as per Ext.P3. In the meantime, a provisional gradation list of Assistant Engineers (Civil ) as on 30/11/1999 was issued wherein the 5[th] respondent is shown at Sl.No.392. It is further submitted that WP (C) No. 8326/08 was filed by an incumbent from the 40% direct recruitment quota claiming seniority over a number of persons including petitioners 2 and 3. In fact, he was advised by the PSC only on 5/2/1996. The said writ petition was disposed of by judgment dated 27/9/2008 directing the Board to consider the objections, if any, within three months. Petitioner submitted Exts.P5, P6 and P7 representations against the seniority list. Alleging that nothing has been done in the matter, this writ petition is filed seeking for a writ of certiorari to quash Exts.P1 and P4 seniority lists in so far as respondents 3 to 5 are placed above the petitioners, for a declaration that the petitioners are seniors to respondents 3 to 5 and for a mandamus directing WP(C) No. 9633/08 & conn.cases **==> picture [21 x 9] intentionally omitted <==** respondents 1 and 2 to promote the petitioners as Assistant Executive Engineers w.e.f. the date of promotion and for other consequential reliefs. 9. Counter affidavit is filed on behalf of the 2[nd] respondent inter alia stating that the seniority list published during 10/11/1995 was revised on 19/2/2000 based on direction contained in judgment in OP No.3291/1992. It is further submitted that the interse seniority 1:4 between the 10% and 40% degree quota was also maintained as per Board order dated 25/9/1975. It is further stated that as per Board order dated 25/9/1975, one departmental candidate will be placed first and thereafter 4 persons will be ranked consequently from those from the open market (40% quota) in the order of seniority in the advice list and then the next candidate from the department quota and the process will continue till the quota for departmental candidate is exhausted. 10. Reply affidavit has been filed by the petitioner controverting the allegations raised in the objection. 11. WP(C) No. 34933/2010 has been filed by the petitioners for a direction that they are entitled to be promoted as WP(C) No. 9633/08 & conn.cases -:9:- Assistant Engineers (Civil) with effect from a date prior to the date of advice of respondents 3 and 4 and for consequential reliefs. In the writ petition it is alleged that they were advised by PSC on 26/8/1994 and completed their probation on 2/5/95 and 26/4/95 respectively. Petitioners had filed WP(C) Nos. 25249/2007, 9633/2008 and 29187/2008 challenging the gradation list of 10% in service candidate and seeking relief for promotion. It is alleged that they come from the 10% quota of Assistant Engineers and now promotions are being made overlooking their seniority despite directions issued by this Court in various writ petitions. In this case also, counter affidavit has been filed by the 1[st] and 2[nd] respondents taking almost a similar stand in the matter. 12. Heard the learned counsel appearing for petitioner and the learned counsel appearing for the KSEB. Sri.Jnanasekharan, learned counsel for the petitioner also placed reliance on the judgment of the Apex Court in _**D Ganesh Rao Bhatnaik and others v. State of Jharkhand and others**_ (2005) 8 SCC 654, and also the judgment in _**Prasad Kurian and others v. K.G.Augustine and others**_ (2008 (2) ILR Ker 240). 13. Dispute between the parties is with reference to WP(C) No. 9633/08 & conn.cases -:10:- seniority. It is now borne out from records that a final seniority list has been prepared by the Board which is produced by the petitioner in WP(C) No. 9633/2008 as Ext.P15 and P15(a). None of the parties have challenged Ext.P15. Petitioner claim that Ext.P15 had to be given effect for the purpose of promotion. Whereas the stand of the Board is that there is no vacancy in the post of Assistant Executive Engineer as already they are outnumbered. But it is relevant to note that all along Board had taken their own decision without finalising the seniority list. Once the seniority list is finalised, the remedy is to give promotion based on the said seniority list, failing which it will render substantial hardship to the persons concerned and would amount to violation of Article 14 of the Constitution of India. Under such circumstances, I am of the view that Exts.P15 and P15(a) will have to be given effect to. While giving effect to Ext.P15 and P15 (a) if the petitioner's juniors are promoted, necessarily petitioners are also entitled for promotion from the said date or else appropriate orders are to be passed reverting the juniors from the said position and granting promotion strictly in accordance with the seniority list. WP(C) No. 9633/08 & conn.cases **==> picture [27 x 9] intentionally omitted <==** 14. In the result, writ petitions are allowed. The respondent Kerala State Electricity Board is directed to promote the petitioners on the basis of Exts.P15 and P15(a) seniority lists (produced in WP(C) No. 9633/2008) effective from the date on which their juniors were promoted and, if there are no vacancies in the cadre, by reverting the juniors from the said position. Sd/- **A.M. SHAFFIQUE, JUDGE** Rp //True Copy// P.S to Judge