S. Ganesan v. Kerala State Electricity Board Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN TUESDAY, THE 15[TH] DAY OF NOVEMBER 2022 / 24TH KARTHIKA, 1944** **WP(C) NO. 13167 OF 2021** ## **PETITIONER:** S. GANESAN, AGED 52 YEARS EMP. CODE 1038729, PRESENT WORKING AS ASST.ENGINEER (CIVIL), RESEARCH AND DAM SAFETY ORGANIZATION, PALLOM, KOTTAYAM, RESIDING AT 1/384 SREENANDANAM, PALLIKKARA, KUMARAPURAM P.O., ERNAKULAM, PIN-683 565. BY ADVS. ATUL SOHAN SREEJA SOHAN K. K.V.SOHAN ## **RESPONDENTS:** 1 KERALA STATE ELECTRICITY BOARD LTD., REPRESENTED BY CHAIRMAN AND MANAGING DIRECTOR, KERALA STATE ELECTRICITY BOARD, VAIDYUTHI BHAVANAM, THIRUVANANTHAPURAM-695 004. 2 CHIEF ENGINEER (HRM), VYDYUTHI BHAVANAM, PATTOM-695 004. 3 DEPUTY CHIEF ENGINEER (R & DS AND DRIP), RESEARCH AND DAM SAFETY ORGANIZATION, PALLOM P.O., KOTTAYAM-686 007. 4 DEPUTY CHIEF ENGINEER (CIVIL), KERALA STATE ELECTRICITY BOARD LTD., CIVIL CIRCLE, KOTHAMANGALAM-686 666. 5 SREEJA.P.S., EMPLOYEE CODE 1048218, SMALL HYDRO ELECTRIC PROJECTS (SHEP), PORINGALKUTHU, PARIYARAM, KERALA-680 724. 6 GEETHA KRISHNAN, EMPLOYEE CODE 1038752, RESEARCH AND DAM SAFETY ORGANISATION, PALLOM P.O., KOTTAYAM-686 007. 7 SINDHU.V.K., EMPLOYEE CODE 1041346, K.S.E.B., GENERATION CIRCLE, KOTTAPPURAM, THRISSUR, PIN-680 004. 8 ADDL.R8. RENJU FRANCIS ASSISTANT ENGINEER (CIVIL), ELECTRICAL CIRCLE, ERNAKULAM - 682 018. 9 ADDL.R9. KISHORE KUMAR C.P. ASSISTANT ENGINEER (CIVIL), CIVIL SUB DIVISION, TRANSMISSION CIRCLE, KALAMASSERY, ERNAKULAM. W.P.(C)No.13167 OF 2021 2 10 ADDL.R10. JOONE JOY ASSISTANT ENGINEER (CIVIL), CIVIL SUB STATION, TRANSMISSION CIRCLE, KALAMASSERY, ERNAKULAM. [ADDL.R8 TO R10 ARE IMPLEADED AS PER ORDER DATED 4/8/2021 IN I.A.NO.1/2021 IN WP(C)13167/2021] BY ADVS. M.K.THANKAPPAN S.P.ARAVINDAKSHAN PILLAY N.SANTHA V.VARGHESE PETER JOSE CHRISTO S.A.ANAND K.N.REMYA L.ANNAPOORNA VISHNU V.K. ABHIRAMI K. UDAY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C)No.13167 OF 2021 3 ## **JUDGMENT** ## **Dated this the 15[th] day of November, 2022** This writ petition is filed seeking the following ## reliefs: _“A. Quash Ext.P16 and all further process for promotion to the cadre of Assistant Executive Engineers (Civil) in the 75% Graduate Quota on the basis of Ext.P16 Nomination List._ _B. Issue a writ of mandamus or other appropriate writ or order directing Respondent No:2 to include the petitioner in the Graduate Quota Gradation List with effect from 30-09-1999 the date on which the petitioner acquired additional qualification of B. Tech and reissue the Gradation list._ _C. Quash Ext.11 and Ext.P12 giving promotions to Respondents No: 5 and No:6 the post of Assistant Executive Engineer overlooking the claim of the Petitioner._ _D. Direct Respondents 1 and 2 to promote the petitioner to the post of Assistant Executive engineer with retrospective effect taking into account the acquisition of additional qualification of B.tech on 30-09-1999 with retrospective seniority at appropriate place.”_ 2. Heard the learned counsel for the petitioner, the learned Standing Counsel for the W.P.(C)No.13167 OF 2021 4 KSEB as well as the learned counsel appearing for respondents 8 to 10. 3. It is submitted by the learned counsel appearing for the petitioner that the petitioner entered service of the KSEB on 14.03.1995 as Sub-Engineer (Civil). At the time, his qualification was Diploma in Civil Engineering as evidenced by Exhibit P1. It is submitted that while in service, he had joined the B.Tech course in the Government Engineering College, Thrissur and acquired the B.Tech degree. Exhibit P2 is the certificate showing the declaration of the result of the B.Tech examination held in June 1999. It is submitted by the learned counsel for the petitioner that the petitioner made a request to the respondents to update the newly acquired qualification in the service book and the updation was carried out. However, he was not granted the benefit of his W.P.(C)No.13167 OF 2021 5 B.Tech qualification for further promotions, is the contention. It is further contended that by Exhibit P6 dated 08.05.2001, the petitioner had specifically requested for a stream change, however, the same was not acted upon. 4. Learned counsel for the petitioner submits that he had thereafter, acquired M.Tech qualification, which was also duly entered in his service book. The petitioner made Exhibit P9 representation on 27.01.2021 before the Chief Engineer (HRM), seeking a revision of the gradation list by reckoning his additionally acquired qualifications. It is submitted that the said request had been duly forwarded through proper channel by Exhibit P10. However, even thereafter, the claim of the petitioner was not considered and respondents 5 and 6 were promoted without considering the request. It is submitted that the petitioner W.P.(C)No.13167 OF 2021 6 therefore, submitted Exhibit P13 request on 22.02.2021, which was also duly forwarded to the 2[nd] respondent. However, by Exhibit P15 dated 09.04.2021, the petitioner was informed that the petitioner had been superseded only by qualified graduates whose names were included in the graduate quota and since the petitioner had not submitted any request for change of stream or quota from the diploma quota under which he had been granted promotion as Assistant Engineer on 12.07.1999, the petitioner's claim could not be considered. It was specifically intimated by Exhibit P15 that the petitioner had not exercised the option for stream change till date and that if he opts for such stream change, he will be placed as the junior most in the graduate stream in the post of Assistant Engineer from the date of submission of the request. W.P.(C)No.13167 OF 2021 7 5. The learned counsel for the petitioner submits that Exhibit P16 order of promotion had been issued on 22.06.2021 to graduate Assistant Engineers (Civil), ignoring the claim of the petitioner which is under challenge in the writ petition. It is contended that the grant of promotion to persons included in Exhibit P16, without considering the claim of the petitioner, is illegal and violative of the rights of the petitioner. 6. A counter affidavit has been placed on record by respondents 1 to 4, specifically contending that the petitioner was promoted to the post of Assistant Engineer(Civil) in the diploma quota. It is submitted that though the petitioner had informed the acquisition of the qualification and his qualifications were duly entered in the service book, he had not submitted a specific option as required by Rule 5(b) of the Kerala Engineering W.P.(C)No.13167 OF 2021 8 Services (Civil and General Branch) Rules for switching to the graduate stream and therefore he continues to be in the 30% quota of Assistant Engineer (Civil) and does not have any legal right to be included in the graduate quota. It is further contended at paragraph No.12 of the counter affidavit s follows: _“It is humbly submitted that credibility of the Ext P6 brought in by the petitioner to assert that he had submitted his option to be included among the graduate Assistant Engineer (Civil) seems to be dubious because in the representations he has submitted before the 1[st] and 2[nd] respondents seeking his inclusion in the graduate list, the said copy of Ext P6 was not enclosed. In Ext P9 and Ext P13 representations of the petitioner to the 2[nd] respondent Ext P6 submission was not attached or even mentioned. That apart the petitioner had submitted a representation dated 16.2.2021 to the Special Officer, Revenue, KSEBL who is also the Liaison Officer for the SC/ST employees of the KSEBL seeking his intervention in the matter of his inclusion in the graduate list. True copy of the representation dated 16-02-2021 is produced herewith and marked as Exhibit R2(b). The representation was subsequently forwarded to the CMD of KSEBL. In this representation_ W.P.(C)No.13167 OF 2021 9 _also the Ext P6 representation was neither mentioned nor attached. The document which the petitioner had failed to bring to the fore in all these occasions suddenly sprang up as Ext P6 in the petition lends quite a lot room for the legitimate suspicion regarding its credibility. What is most significant is that the Ext P6 submission was not recommended by the ARU head. That means it was not submitted through proper channel. But other communications of the petitioner, namely Ext P9 and Ext P13 was recommended and forwarded by the ARU Head by Ext P10 and Ext P14 respectively. Applications not submitted through proper channel without being properly recommended by the controlling officers concerned are not liable to be considered. All these point to the possibility of Ext P6 being a cooked up one and the fact is that the petitioner had never made any specific option to switch to graduate stream of Assistant Engineer (Civil) through proper channel.”_ Reliance is also placed on Exhibit R2(a) judgment of this Court where the issue has been considered and it was held that unless a specific option for change of stream is made by the employee concerned and he opts to be included as the Junior most Officer in the graduate scheme, the claim for promotion in the W.P.(C)No.13167 OF 2021 10 graduate quota cannot be considered. 7. A reply affidavit has been placed on record by the petitioner and an additional reply affidavit with a notarized affidavit of the Assistant Executive Engineer (Civil) at the relevant time is also placed on record wherein, it is stated that on acquisition of degree qualification by the petitioner, the petitioner had approached the said officer, who is a deponent in the affidavit, on 08.05.2001 to effect entry in the service book and that the entry was effected by the deponent. It is further stated that his submission for adding his name in the list of graduate engineers was forwarded to higher authorities, through proper channel. 8. Respondents 8 to 10 have also placed a counter affidavit on record. It is contended that the petitioner who entered service as Sub-Engineer with qualification of Diploma in Civil Engineering was W.P.(C)No.13167 OF 2021 11 promoted to the category of Assistant Engineer (Civil) as per order dated 29.06.1999 and that the promotion was, admittedly, in the diploma quota. It is contended that though the acquisition of the degree qualification was duly entered in the petitioner's service book and Exhibit P6 is produced along with the writ petition to contend that he had sought for a stream change, the submission as shown by Exhibit P6 is not specifically addressed to any person. It is contended that the same is not an option submitted by the petitioner in terms of Rule 5(b) of the Kerala Engineering Services (Civil and General Branch) Rules. It is further contended that the petitioner has not produced any material to show that he had requested the 2[nd] respondent who is the competent authority to allow stream change to include the petitioner's name in the list of Assistant Engineers under the degree quota for the W.P.(C)No.13167 OF 2021 12 purpose of promotion to the category of Assistant Executive Engineer (Civil). It is contended that the petitioner not having submitted a proper option in terms of Rule 5(b) at the relevant time, he cannot claim the benefit of inclusion in the degree quota after the passage of more than 20 years from the date of his promotion as Assistant Engineer in the diploma quota. Exhibit R8(a) seniority list of the year 2011 is produced and it is contended that the names of all persons who had been appointed as Assistant Engineers in the degree quota till 08.03.2002 are included while the petitioner's name is specifically excluded. The said seniority list has not been challenged at the relevant time. The learned counsel also place his reliance on a decision of the Apex Court in **Chandravathi v. Saji** [2004 KHC 586] to contend that though Rule 4 and 5 of the Kerala Engineering Services (General Branch) W.P.(C)No.13167 OF 2021 13 Rules, provided for a specific option and the person who did not submit such an option could not be permitted to claim inclusion in the graduate quota and further promotions in the said quota. 9. Having considered the contentions advanced, I notice that the petitioner was promoted as Assistant Engineer on 12.07.1999, admittedly, in the diploma quota. It is not in dispute that the employee acquired the B.Tech. qualification in the year 1999 itself. The request for entering the qualification in the service book appears to have been made by the petitioner and the qualification was also updated in the service book. The later qualification of M.Tech acquired by the petitioner also stands included in the service book. However, the only question is with regard to the submission of Exhibit P6 request and whether the petitioner is entitled to stream change on the basis of the same. W.P.(C)No.13167 OF 2021 14 It is pertinent to note that Exhibits P9 and P13 representations have been submitted by the petitioner in the year 2021. The said representations are completely silent about the submission of Exhibit P6. The petitioner was well aware of the fact that he was promoted as Assistant Engineer in the diploma quota. On acquisition of the qualification of B.Tech, it was for him to have taken appropriate steps to see that his name stood included in the degree quota if he intended to avail the benefits of the said quota. If he had specifically sought change of stream and inclusion in the degree quota, his name would have been included as the junior most in the degree quota as on the date of the submission of such option. The petitioner apparently did not make a specific option as provided under Rule 5(b) of the Special Rules for a W.P.(C)No.13167 OF 2021 15 change of quota. Even if he did, he did not take any steps to see that the same was acted upon. It appears that it was only when persons included in the degree quota stood promoted by the issuance of Exts.P11, P12 and P16 that the petitioner had submitted representations seeking revision of seniority by reckoning his B.Tech qualification and included him in the degree quota. The petitioner, therefore, had apparently slept over his rights even assuming that he had submitted Ext.P6 request in time. He did not challenge the seniority list published in the meanwhile, which has been produced along with the counter affidavit filed by respondents 8 to 10. The petitioner cannot, therefore, after 20 years from the alleged date of submission of Ext.P6 now seek to unsettle the settled seniority position or seek reliefs in this writ petition at this distance in time. W.P.(C)No.13167 OF 2021 16 I find no merits in the writ petition. The writ petition fails and the same is, accordingly, dismissed. **Sd/ANU SIVARAMAN JUDGE** SSK/15/11 W.P.(C)No.13167 OF 2021 17 ## **APPENDIX** |PETITIONER EXHIBITS|| |---|---| |EXHIBIT P1|EMPLOYEE INCUMBENCY DETAILS OF THE| ||PETITIONER.| |EXHIBIT P2|CERTIFICATE ISSUED BY THE UNIVERSITY OF| ||CALICUT SHOWING THE DATE OF THE DECLARATION| ||OF THE RESULT OF B.TECH EXAMINATION HELD IN| ||JUNE 1999.| |EXHIBIT P3|TRUE COPY OF THE PROVISIONAL B.TECH DEGREE| ||CERTIFICATE.| |EXHIBIT P4|APPLICATION SUBMITTED THROUGH THE OFFICE OF| ||HE ASST. EXE.ENGINEER (CIVIL INVESTIGATION| ||SUB DIV.), IDAMALAYAR ALONG WITH THE| ||PROVISIONAL B TECH DEGREE CERTIFICATE.| |EXHIBIT P5|TRUE COPY OF THE B.TECH DEGREE CERTIFICATE.| |EXHIBIT P6|TRUE COPY OF THE APPLICATION SUBMITTED| ||THROUGH THE OFFICE OF THE ASST.| ||EXE.ENGINEER (CIVIL INVESTIGATION SUB DIV.)| ||, IDAMALAYAR ALONG WITH THE B.TECH DEGREE| ||CERTIFICATE.| |EXHIBIT P7|M.TECH DEGREE CERTIFICATE.| |EXHIBIT P8|TRUE COPY OF THE RELEVANT PORTION OF THE| ||SERVICE BOOK.| |EXHIBIT P9|TRUE COPY OF THE REPRESENTATION DATED| ||27.01.2021 SUBMITTED TO THE 2ND RESPONDENT.| |EXHIBIT P10|COVERING LETTER SENT BY THE DEPUTY CHIEF| ||ENGINEER TO THE 2ND RESPONDENT ALONG WITH| ||EXT.P9.| |EXHIBIT P11|ORDER PROMOTING RESPONDENT NO.5 SREEJA P.S.| ||AS ASSISTANT EXECUTIVE ENGINEER.| |EXHIBIT P12|ORDER PROMOTING RESPONDENT NO.6 GEETHA| ||KRISHNAN AS ASSISTANT EXECUTIVE ENGINEER.| |EXHIBIT P13|TRUE COPY OF THE REQUEST DATED 22.02.2021.| |EXHIBIT P14|COVERING LETTER DATED 23.02.2021.| |EXHIBIT P15|REPLY ISSUED BY THE CHIEF ENGINEER (HRM)| ||(R2) DATED 09.04.2021.| |EXHIBIT P16|NOMINATION LIST/INCUMBENCY DETAILS OF| ||GRADUATE ENGINEERS ISSUED BY THE CHIEF| ||ENGINEER (HRM) DATED 22.06.2021.| |EXHIBIT P17|TRUE COPY OF THE PART-II OF THE SERVICE| ||BOOK.| W.P.(C)No.13167 OF 2021 18 |**RESPONDENT EXHIBITS**|| |---|---| |ANNEXURE-R8(A)|TRUE COPY OF THE BOARD ORDER NO. GR.(C)/| ||WP(C)NO. 6150/2010/11 DATED 25.04.2011| ||ISSUED BY THE 2ND RESPONDENT ALONG WITH| ||APPENDED SENIORITY LIST OF ASSISTANT| ||ENGINEER (CIVIL) OF DEGREE QUOTA.| |ANNEXURE-R8(B)|TRUE<br>COPY<br>OF<br>THE<br>ORDER| ||NO.E.B6(B)/PROM/AE(C)-AEE(C)/2016/207/18-5-| ||2019 DATED 16.05.2020.| |ANNEXURE-R8(C)|TRUE COPY OF THE LETTER NO.ESTT.| ||APAR/2020/AE(CIVIL) DATED 23.07.2020 OF THE| ||SECRETARY(ADMN) OF THE 1ST RESPONDENT| ||BOARD.| |ANNEXURE-R8(D)|TRUE<br>COPY<br>OF<br>THE<br>NOTICE<br>NO.| ||EB.GR3/AE(CIVIL)/SL/2021 DATED 17.03.2021.| |EXHIBIT R 2(A)|TRUE COPY OF THE JUDGMENT DATED 1.7.2016 IN| ||WPC NO 16609/2010| |EXHIBIT R 2(B)|TRUE COPY OF THE REPRESENTATION DATED 16-| ||02-2021.| SSK //TRUE COPY// PA TO JUDGE