Saji George v. Kerala State Electricity Board

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **TUESDAY, THE 25TH DAY OF FEBRUARY 2020 / 6TH PHALGUNA, 1941** ## **WP(C).No.19733 OF 2012(N)** ## **PETITIONER:** **SAJI GEORGE AGED 37 YEARS** **LINEMAN GRADE-I, ELECTRICAL SECTION, KERALA STATE ELECTRICITY BOARD, ERUMELY.** **BY ADV. DR.GEORGE ABRAHAM** ## **RESPONDENTS:** |**1**|**KERALA STATE ELECTRICITY BOARD**| |---|---| ||**REPRESENTED BY ITS SECRETARY,**| ||**VYDHYUTHI BHAVAN, PATTOM,**| ||**THIRUVANANTHAPURAM-695 014.**| |**2**|**THE CHIEF ENGINEER (HRM)**| ||**KERALA STATE ELECTRICITY BOARD,**| ||**VYDHYUTHI BHAVAN, PATTOM,**| ||**THIRUVANANTHAPURAM.**| |**3**|**SHANAVAS.P.M.**| ||**LINEMAN GRADE-I, SECTION OFFICE,**| ||**KERALA STATE ELECTRICITY BOARD,**| ||**MUNDAKAYAM-686 513.**| ||**R1 BY SRI.K.S.ANIL, SC, KSEB**| ||**R1 BY ADV. SRI.M.K.THANKAPPAN, SC, KERALA STATE**| ||**ELECTRICITY BOARD LIMIT**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.19733/2012 ## **JUDGMENT** Dated this the 25[th] day of February 2020 The petitioner was advised for appointment as Electricity Worker on 16.12.2004 in KSEB in Malappuram District on district wise recruitment through Kerala Public Service Commission (PSC). On appointment he joined the post on 11.02.2005. He was granted an inter-district transfer to Kottayam District, based on his request and he joined the new District on 16.07.2005. Thereafter he got promotion as Lineman Grade-II in January 2010 and further promotion as Lineman Grade-I in January 2011. 2. Pointing out that persons who were advised along with him in Malappuram District and persons junior to him got promotion as Lineman Grade-II much prior to his promotion, the petitioner submitted a representation before the Chief Engineer requesting for promotion reckoning his seniority on the basis of the date of his advice as Electricity Worker. It was stated that he was entitled to be granted promotion along with those advised on 16.12.2004. In Ext.P6 representation petitioner had also stated that he got inter district transfer as per order W.P.(C) No.19733/2012 **==> picture [19 x 8] intentionally omitted <==** dated 16.07.2005 where it was stated that he would be considered junior most in the seniority list of Electricity Workers based on the date of reporting for duty in Kottayam District and that he would lose his seniority in the District where he was recruited. Relying on Ext.P4 judgment dated 06.03.2002 in W.A.No.2617/1998 petitioner requested for promotion reckoning his seniority based on his advice for appointment as Electricity Worker pointing out that Division Bench had directed preparation of State wise seniority list of Lineman Grade II on the basis of Rule 27(c) of KS&SSR. Petitioner thereafter approached this Court in WP(C) No.19272/2009 and by Ext.P9 judgment, the 2[nd] respondent was directed to consider his representation. By Ext.P10 order the 2[nd] respondent rejected his representation stating that seniority in service as well as effective service of Electricity Workers is decided in accordance with clause 3 of Board Order No.2033/1997 dated 17.09.1997 (Ext.R2(b)). It was further stated that Electricity Workers are appointed through district-wise recruitment. Since petitioner got a transfer to Kottayam District based on his own request he is not entitled to get seniority along with Electricity Workers who joined along with him as per Board Order. W.P.(C) No.19733/2012 **==> picture [19 x 8] intentionally omitted <==** 3. According to the petitioner the Board Order does not provide for such a provision. The petitioner asserts that since the appointment of Lineman is made from State wise seniority list, that seniority list is to be prepared based on date of advice only and therefore inter-district transfer would not have any relevance for the purpose of promotion as Lineman. 4. The 2[nd] respondent has filed a counter affidavit stating that the petitioner was appointed as Electricity Worker in Electrical Section, Thirunavaya in Malappuram District on 01.02.2005; based on his request, he was granted inter-district transfer to Kottayam on 23.07.2005, as per the conditions fixed in Ext.R3(b) order; in Ext.R2(a) final gradation list of Electricity Workers as on 14.02.2008, published on 03.02.2010, petitioner was assigned seniority at serial no.5919. It is stated that in this gradation list also, clause 7 of the guidelines specifically provided that any inter-district transfer will entail loss of seniority and their seniority would be determined with respect to the date of joining duty in the district of their choice. They have also stated that Board is empowered to make Regulations in respect of service conditions of the employees by virtue of clause (c) of W.P.(C) No.19733/2012 **==> picture [19 x 8] intentionally omitted <==** section 79 of Electricity (Supply) Act, 1948. It is also stated that as per Ext.R2(b)-Board order conditions were laid down with respect to inter-district transfer. Clause 3 of Ext.R2(b) Board order provides that _**“any inter-district**_ _**transfer will entail loss of seniority. Service prior to the transfer will count towards, leave and pension**_ _**benefits**_ ”. It is also stated that the Board order is issued in tune with G.O.(P) No.36/91P&ARD dated 02.12.1991 and G.O(P) No.37/96 P&ARD dated 07.11.1996. Therefore, as the petitioner, who joined another district based on a transfer granted on the basis of his own request, is entitled to seniority only from the date on which he joined duty in Kottayam District. Respondents have stated that petitioner would not be eligible for promotion as in the case of Electricity Workers who have not availed interdistrict transfer and that he was granted promotion in accordance with law and in tune with Ext.R2(b). 5. Learned counsel for the petitioner argued that Ext.R2(b) Board order does not provide for any provision relating to the seniority to be reckoned in cases where promotions are made State wise. Learned counsel also relied on Ext.P4 judgment and argued that the only basis for State-wise seniority is date of advice, which does not W.P.(C) No.19733/2012 :6: change on inter-district transfer. 6. I have considered the contentions advanced by Dr.George Abraham, the learned Counsel for the petitioner and Sri.M.K Thankappan, the learned Counsel for the respondents. It is an admitted fact that the appointment of petitioner as Electricity Worker was on district-wise recruitment to Malappuram District and that petitioner was transferred to Kottayam District on the basis of his own request. From Ext.P6 representation of the petitioner it is seen that his transfer was subject to the conditions that he would be entitled to seniority only with effect from the date on which he report the transferred district and that he would be junior to the junior-most in that District. This is in accordance with the provisions contained in clause 3 of Ext.R2(b) order which is in tune with the proviso to Rule 27 (a) of KS&SSR, which reads as follows: _“Provided that the seniority of persons on mutual or inter-unit or inter-departmental transfer from one unit to another, as the case may be, on requests from such persons shall be determined with reference to the dates of their joining duty in the new unit or department. xxx”_ 7. In the judgment Ext.P4 even though there was a direction to publish a state-wise seniority list based on date of advice, it is seen that the question whether the W.P.(C) No.19733/2012 :7: seniority of an employee who got inter district transfer based on his request would also be from the date of advice, has not come up for consideration before the Division Bench. Therefore, there is no basis for the contention of the petitioner, in relying on Ext.P4 judgment to claim promotion on the basis of his date of advice as Electricity Worker, after enjoying a transfer on his own request. 8. It is relevant to note that Clause 3 in Ext.R2(b) Board Order provides that any inter district transfer will entail loss of seniority though the service prior to that can be counted towards, leave and pension. The petitioner has in his representation Ext.P6, stated that in the order dated 16.07.2005 transferring him to Kottayam District, it was stipulated that he would be considered as junior-most in the seniority list of Electricity Workers in Kottayam District, as on the date of his reporting duty in that District, which is apparently in tune with Ext.R2(b) order. Therefore, his services in Malappuram District is not liable to be considered for the purpose of seniority. Even for promotions which are made state-wise, that loss of seniority should be reflected while preparing the statewide gradation list. 9. It is also relevant to note that the apex court has W.P.(C) No.19733/2012 :8: in _**Sudhakaran vs. State of Kerala** [2006 (2) KLT 817 (SC)]_ considered the question regarding promotion to the post of UD Clerk in Registration Department in the case of LD Clerks who got inter district transfer on request. Reversing the judgment of this Court the apex court held that a person who got appointment through district wise recruitment will entail loss of seniority when he gets a transfer on his own request. After interpreting the provisions contained in rule 27(a) and (c) of KS&SSR and the executive orders relating to inter-district transfer, it was held that even when promotion is made on state wise basis, an LD Clerk who got inter-district transfer on request will not be entitled to reckon his seniority from the date of his advice. It was held that the effect of clause (c) is to clarify the date with reference to which seniority would be reckoned when they are initially appointed on the advice of PSC and it only means that where the appointments are from the selection list published by the PSC, their seniority would be reckoned/determined by the first effective advice made for such appointment by the PSC and not by the actual date of his appointment by the appointing authority and clause (c) cannot have any effect over the proviso which regulates subsequent own request W.P.(C) No.19733/2012 **==> picture [19 x 8] intentionally omitted <==** transfers. Therefore the judgment of the Division Bench has to be understood in tune with the dictum laid down by the apex court. Therefore, I do not find any illegality in Ext.P10. The Writ Petition is accordingly dismissed. ## **Sd/-** **P.V.ASHA** rkc **JUDGE** W.P.(C) No.19733/2012 :10: ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** |**EXHIBIT P1**|**TRUE COPY OF PETITIONER'S REPRESENTATION FOR**<br>**TRANSFER, DATED 25-4-2005**| |---|---| |**EXHIBIT P2**|**TRUE COPY OF COMMUNICATION DATED 4-4-2005**<br>**ISSUED BY THE COMMANDER SECRETARY, MINISTRY OF**<br>**DEFENCE**<br>**(NAVY)**<br>**RECOMMENDING**<br>**PETITONWE'S**<br>**TRANSFER**| |**EXHIBIT P3**|**TRUE COPY OF THE PETITIONER'S RELIEVING ORDER**<br>**ISSUED BY THE BOARD DATED 22-7-2005**| |**EXHIBIT P4**|**TRUE COPY OF THE JUDGMENT IN WRIT APPEAL**<br>**NO.2617/1998**| |**EXHIBIT P5**|**TRUE COPY OF THE BOARD ORDER DATED 3-2-2003**| |**EXHIBIT P6**|**TRUE COPY OF PETITIONER'S REPRESENTATION TO THE**<br>**2ND RESPONDENT, DATED 22-4-2009.**| |**EXHIBIT P7**|**TRUE COPY OF LETTER DATED 23-4-2009 UNDER COVER**<br>**OF WHICH THE ASSISTANT ENGINEER FORWARDED**<br>**EXHIBIT P6 TO THE 2ND RESPONDENT.**| |**EXHIBIT P8**|**TRUE COPY OF THE REMINDER DATED 6-5-2009 SENT**<br>**BY THE PETITIONER.**| |**EXHIBIT P9**|**TRUE DOPY OF JUDGEMENT IN W.P.(C) 19278/09**<br>**DATED 7-2-2012**| |**EXHIBIT**<br>**P10**|**TRUE COPY OF KERALA STATE ELECTRICITY BOARD**<br>**ORDER DATED 20-6-2012.**| |**EXHIBIT**<br>**P11**|**TRUE COPY OF THE KERALA STATE ELECTRICITY BOARD**<br>**ORDER NO.EB4(a)/2002/144/LMI/PRO DATED 3-2-**<br>**2003.**| |**EXHIBIT**<br>**P12**|**TRUE COPY OF THE KERALA STATE ELECTRICITY BOARD**<br>**ORDERNO.EB4(a)/2002/144/LMII/PRO DATED 3-2-**<br>**2003.**| |**EXHIBIT**<br>**P13**|**TRUE COPY OF PETITIONER'S APPOINTMENT ORDER**<br>**DATED 31-1-2005.**| :11: W.P.(C) No.19733/2012 ## **RESPONDENTS' EXHIBITS:** |**EXHIBIT**<br>**R2**<br>**(a)**|**TRUE COPY OF THE PROCEEDINGS DATED**<br>**03.02.2010.**| |---|---| |**EXHIBIT**<br>**R2**<br>**(b)**|**A TRUE COPY OF THE B.O. DATED 17.09.1997.**|