R. Radhakrishnan v. Kerala State Electricity Board

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 11TH NOVEMBER 2010 / 20TH KARTHIKA 1932 WP(C).No. 17904 of 2005(F) -------------------------- PETITIONER(S): - --------------- R. RADHAKRISHNAN, ASSISTANT ENGINEER, BOARD SECRETARIAT, VYDHYUTHI BHAVAN, THIRUVANANTHAPURAM. BY ADV. SRI.S.RAMESH BABU RESPONDENT(S): --------------- 1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDHYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM. 2. THE CHIEF ENGINEER (HRM), VYDHYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM. 3. G. SAJEEV, ASST. EXECUTIVE ENGINEER, SYSTEM OPERATION CIRCLE, THIRUVANANTHAPURAM. 4. P. SATHYASEELAN, ASST. ENGINEER, ELECTRICAL SECTION, KANNANNALLOOR, KOTTIYAM, KOLLAM. ADDL. R3 AND R4 IMPLEADED AS PER ORDER DT. 6.4.2006 IN I.A.NO. 5499/2006. ADV. SRI.K.S.ANIL, SC, KSEB FOR R1 & R2 SRI. ASOK M.CHERIYAN, SC, KSEB FOR R1 & R2 SRI.BIJU BALAKRISHNAN FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/11/2010, THE COURT ON THE SAME DAY, DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: W.P.C.NO. 17904/2005 ----------------------------------------------------------------- EXT.P1 TRUE COPY OF MEMO DT. 16.3.1996. EXT.P2 ORDER DT. 16.1.1999. EXT.P3 PROCEEDINGS DT. 27.11.2004. EXT.P3(a) RELEVANT EXTRACT OF LIST RELATING TO 10% QUOTA. EXT.P3(b) RELEVANT EXTRACT OFLIST RELATING TO 40% DIRECT DIRECT RECRUITMENT QUOTA. EXT.P4 ORDER OF PROMOTION. EXT.P5 REPRESENTATION DT. 3.12.2004. EXT.P6 REPRESENTATION OF PETITIONER DT. 7.3.2005. EXT.P7 JUDGMENT IN W.P.C. 7029/2005. EXT.P8 ORDER DT. 4.5.2005. EXT.P9 B.O.NO. 389/99 DT. 12.2.1999. EXT.P10 GOVT. ORDER DT. 21.3.1990. EXT.P11 BOARD ORDER DT. 10.4.1990. EXT.P12 JUDGMENT IN O.P. 3291/1992. RESPONDENTS' EXHIBITS: --------------------------------------EXT.R1(a) ORDER DT. 30.12-1989. EXT.R1(b) ORDER DT. 25.9.1985. EXT.R1(c) JUDGMENT OF SUPREME COURT IN C.A.NO. 3619/82. EXT.R3(a) ORDER DT. 20.2.2002. EXT.R3(b) ORDER DT. 9.12.1970. EXT.R3(c) JUDGMENT IN W.P.C.NO. 21527/97. EXT.R3(d) ORDER DT. 3.5.1989. EXT.R3(e) COMMUNICATION DT. 1.6.1989. EXT.R3(f) B.O. DATED 30.12.1989. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) No. 17904 of 2005 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 11[th] day of November, 2010. **==> picture [102 x 12] intentionally omitted <==** The petitioner is a person who got appointment in the Kerala State Electricity Board as Assistant Engineer (Electricity) in the 10% quota prescribed for the employees of the Board who obtained degree in Engineering subsequent to their entering service of the Board. The petitioner was appointed as Assistant Engineer by Ext. P1 order dated 16.3.1996. Petitioner's probation in the post of Assistant Engineer was declared on 17.3.1998. While so, the Board issued Ext. P3 seniority list, which contained two parts. Ext. P3(a) is the seniority list in respect of the persons who were promoted as Assistant Engineers from among the lower grade employees of the Electricity Board, who obtained degree after entering the service of the Board. Ext. P3 (b) seniority list is in respect of persons who were directly recruited as Assistant Engineers (Electricity). In Ext. P 3(a), the petitioner's name is included as sl. no. 290. In the same, the date of effective appointment of the petitioner is shown as 1.4.1999 and the actual date of promotion was shown as 7.7.2000. The date of acquiring degree qualification by the petitioner is shown as February, 1992. In the same list, the 4[th] respondent is included as sl. no. 250. He was also appointed from among the employees of the Board, who acquired degree qualification after entering the service of the Board. His actual date of appointment was shown as 16.3.1996 and his date of acquisition of degree is as October 1992. Earlier, for the purpose of deciding the eligibility, for appointment from the 10% quota, was to be decided by Ext. P11 Board order adopting Ext. P1 Government Order on the subject. As per the same, for deciding seniority among the persons who are eligible for appointment in the 10% quota, what was relevant was the length of service after acquisition of qualification of degree. Going by the same, the petitioner was entitled W.P.C. No. 17904/2005 -: 2 :- to be given seniority over the 4[th] respondent insofar as he had more length of service after obtaining degree than the 4[th] respondent, the petitioner having acquired degree qualification in February, 1992 and the 4[th] respondent having acquired degree qualification only in October, 1992. Challenging Ext. P3 seniority on this ground, the petitioner filed Ext. P5 representation dated 3.12.2004. He filed W.P (C) No. 7029/2005 in respect thereof. While the same was pending, he also filed Ext. P6 more detailed representation in the matter. By Ext. P7 judgment in W.P(C) No. 7029/2005, this Court directed the Board to consider Ext. P6 representation of the petitioner. Pursuant to the same, Ext. P8 order was passed rejecting the petitioner's claim. The petitioner has filed tis writ petition seeking the following reliefs: “a) Issue a writ of certiorari calling for the records leading upto Ext. P3(a) seniority list of Assistant Engineers (Ele.) in the 10% quota and quash the same to the extent that the petitioner's date of appointment is not reckoned as 16.3.1996. b) Issue a writ of mandamus commanding the respondents to refix seniority of the petitioner in Ext. P3(a) list strictly on the basis of the decision of the Hon'ble Supreme Court dated 12.2.2004 in C.A No. 884 of 2002 and to reckon the petitioner's date of appointment as Assistant Engineer as 16.3.1996 and to afford him all consequent benefits based on the same. c) Issue a writ of mandamus commanding the respondents to forthwith consider the claim of the petitioner to the post of Assistant Executive Engineer (Ele.) in the 75% graduate quota with notional effect from 20.2.2002 being the date of Ext. P4 by which his juniors have been promoted to the said post. d) Issue a writ of mandamus commanding the respondents to grant further all service benefits to the petitioner including the monetary benefits based on the above reliefs and particularly by promotion as Assistant Executive Engineer with effect from 20.2.2002. e) Issue a writ of certiorari calling for the records leading upto Ext. P 8 and quash the same. W.P.C. No. 17904/2005 -: 3 :- f) Issue a writ of certiorari calling for the records leading upto Ext. P9 and quash the same and direct that in the light of the decision of the Hon'ble Supreme Court reported in 2004(2) KLT 320 seniority of all persons including the petitioner for the purpose of appointment as Assistant Engineers should be reckoned solely on the basis of length of service after acquisition of degree qualification and to effect further promotions on the said basis.” 2. In respect of the question as to which is the length of service to be adopted for this purpose, ie. as to whether it is the length of service after acquiring degree qualification or the total length of service, some employees of the Board filed O.P.No. 3291/1992 challenging Ext. P10 order. A similar question was there in respect of persons who were appointed in the quota prescribed for employees of the Board for appointment to the post of Assistant Executive Engineer from Assistant Engineer. There, the question was among diploma holder Assistant Engineers, when they are promoted as Assistant Executive Engineers in the quota prescribed for degree holders, as to whether the length of service to be considered is service after the acquisition of degree or the total length of service. In respect of the same, some of the employees of the Board filed O.P.Nos. 1510/1993 and 1392/1995. In respect of identical question, there were writ petitions filed by Engineers of other establishments under the Government of Kerala like the Kerala Water Authority, PWD etc also. All these cases were together considered by a Full Bench of this Court. In O.P. No. 3291/1992, the Full Bench quashed Exts.P10 and P11 and directed that the appointments have to be made on the basis of total length of service and not the length of service after acquisition of degree. In respect of the Assistant Executive Engineers also, the same view was taken, which decision is reported in **Manmadhan** v. **Kerala State Electricity Board** , 1999(1) KLT 37. The two decisions in respect of the Board employees became final since the same were W.P.C. No. 17904/2005 -: 4 :- not taken in appeal further. The decision of the Full Bench in respect of the employees of the other departments under the Government of Kerala were taken up in appeal by them before the Supreme Court, which ultimately resulted in the decision in **Chandravathi** v. **Saji,** 2004(2) KLT 320. In that decision, the Supreme Court held that it was for the authority to decide as to the rule regulating qualifications and method of appointment to higher posts. Courts cannot substitute their view to that of the authority concerned and therefore courts cannot interferes with stipulations of the authority in that regard was the decision of the Supreme Court. The petitioner would contend that in view of that Supreme Court decision, the decision of the Full Bench in respect of the Board employees is no longer good law, although those decisions were not subjected to further challenge in appeal. The petitioner would further contend that as is evident from Ext. P3, the Board had also considered the matter in the light of the decision in **Chandravathi's case** (supra) and held as follows: “Though the KSE BOARD vide its letter No. LAS.I/11111/93 dtd. 19/5/2004 had also directed this office to comply with the judgment read as 2[nd] paper above no revision on this account has become necessary since the subject matter dealt with by the Hon'ble Supreme Court had already been applied properly by this office.” According to the petitioner, therefore, the Board was also of the opinion that the decision of the Full Bench in the cases filed by the Board's employees is no longer good law in view of **Chandravathi's case** and therefore, for the purpose of determining seniority among the employees of the Board also, what should be followed is the law as laid down in **Chandravathi's case** . 3. A counter affidavit has been filed by the Board. Therein, the W.P.C. No. 17904/2005 -: 5 :- contention taken is that insofar as the Board's employees are concerned, Exts.P10 and P11 are no longer in existence insofar as the Full Bench had quashed the same and therefore the Board cannot now regulate the seniority applying the principles laid down in **Chandravathi's case** in that matter. Counsel for the Board would submit that it is true that the Board had adopted some principles laid down by the Supreme Court in **Chandravathi's case** in respect of other matters, which were not subject matter of any decision by any court. According to him, insofar as the decision in O.P.No. 3291/1992 and in **Manmadhan's case** (supra) governing the employees of the Board in respect of the issue involved in this case, the Board has no option but to decide the seniority based on those decisions and for that purpose, the decision in **Chandravathi's case** cannot be applied. Counsel for the 4[th] respondent also adopts the same stand. 4. I have considered the rival contentions in detail. 5. It is not disputed before me by any of the parties before me that in view of the ratio of the decision in **Chandravathi's case** , the Full Bench decision of this Court may not be good law. But, it remains a fact that the decision of the Full Bench has become final. But, that creates an anomaly insofar as in other Government Departments, the original orders, which were quashed by the Full Bench of this Court, have been restored because of the decision in **Chandravathi's case** . At the same time, some of the similarly placed persons in the Board continues to be governed by the Full Bench. At the same time, for other posts, the rule adopted is as in Exts.P10 and P11. It is not as if after the Supreme Court decision in **Chandravathi's case** the Board considered the entire matter and decided to adopt a particular principle of law governing the issue W.P.C. No. 17904/2005 -: 6 :- either by restoring Exts.P10 and P11 or by deciding to adopt a rule otherwise. I am of opinion that it is only appropriate that the Government takes a decision in the matter. Therefore, the writ petition is disposed of with the following directions. The 1[st] respondent shall take up the matter with the Government as to whether the Board should follow Ext. P10. Appropriate request in this regard shall be placed by the 1[st] respondent before the Secretary, Department of Power, within a period of one month from the date of receipt of a copy of this judgment. The Government shall consider the entire matter in its real perspective, taking into account the decision in **Chandravathi's case** as now being followed in respect of other Departments as expeditiously as possible, at any rate, within three months from the date of receipt of the request from the 1[st] respondent . Sd/- S. Siri Jagan, Judge. Tds/