Saraswathy Prabha A v. Kerala State Electricity Board Ltd and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY, THE 26[TH] DAY OF JULY 2023 / 4TH SRAVANA, 1945 ``` # **`WP(C) NO. 15613 OF 2019`** ## **`PETITIONER:`** ``` SARASWATHY PRABHA A, AGED 49 YEARS ASSISTANT EXECUTIVE ENGINEER(CIVIL), HIGHER GRADE, DESIGN CELL, KOZHIKODE. ``` ``` BY ADVS. SRI.IMAM GRIGORIOS KARAT SRI.N.KRISHNA PRASAD ``` ## **`RESPONDENTS:`** - `1 KERALA STATE ELECTRICITY BOARD LTD REPRESENTED BY ITS SECRETARY, VYDHUTHI BHAVAN, PATTOM POST, THIRUVANANTHAPURAM, PIN CODE-695 004.` - `2 THE CHIEF ENGINEER(HRM), VYDHUTHI BHAVAN, PATTOM POST, THIRUVANANTHAPURAM, PIN CODE-695 004. KSE BOARD LTD.` - `3 THE SECRETARY(ADMINISTRATION), KERALA STATE ELECTRICITY BOARD LIMITED, VYDHUTHI BHAVAN, PATTOM POST, THIRUVANANTHAPURAM, PIN CODE-695 004.` ``` BY ADV SRI.M.K.THANKAPPAN - SC ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WPC 15613/19 2 ## **`JUDGMENT`** The petitioner joined the services of the Kerala State Electricity Board (KSEB) as an Assistant Engineer (Civil) with effect from 07.01.1993, pursuant to the Advice Memo issued by the Kerala Public Service Commission (KPSC). She reported for duty on 06.03.1993, but availed ‘Leave Without Allowances‘ from 02.11.1993 to 15.05.1994, to join her spouse abroad. The petitioner rejoined duty after the leave on 18.05.1994, but without noticing that she had spent the afore mentioned period under ‘Leave Without Allowances‘, she was granted her next promotion as Assistant Executive Engineer (Civil) on 22.02.1997, after she had completed the period of probation in the entry post. 2. While so, through Ext.P6, which was issued on 24.12.2018, the Deputy Chief Engineer of the KSEB ordered that the petitioner’s pay and increments in the cadre of Assistant Engineer (Civil) shall be regulated only from 18.05.1994, when she joined back after availing ‘Leave Without Allowances’; and consequently that her pay in the cadre of Assistant Executive WPC 15613/19 3 Engineer (Civil) will be regulated with effect from 23.12.1997, contrary to her earlier ordered promotion. This order is under challenge by the petitioner in this writ petition, who asserts that the principles of ‘sit back theory’ is applicable against the KSEB, in as much as they are trying to revise the promotion given to her on 22.02.1997, after more than ten or eleven years. 3. Sri.N.Krishna Prasad – learned counsel for the petitioner, further explained his client’s case, affirming that she had availed of ‘Leave Without Allowances’ to join her spouse abroad and that, after she rejoined duty, she completed mandatory period of probation, thus being correctly granted subsequent promotion on 22.02.1997. He argued that, even assuming that the date assigned was wrong, it could not have been corrected – as has been now done by the KSEB – more than twenty years later, through Ext.P6. He relied upon the judgment of this Court in Kerala State Electricity Board & Ors. v. Sri.P.Sasidharan [2020 (3) KLT 514] in support, to contend that the well enshrined principles of ‘sit back theory’ would apply in this case and hence, that Ext.P6 is illegal and unlawful. He WPC 15613/19 4 concluded his submissions saying that, on account of the change in the date of promotion as Assistant Engineer (Civil) given to her through Ext.P6, she had to wait until February 2023, to be then promoted as an Assistant Executive Engineer (Civil), from which post she retired, on attaining the age of superannuation. He thus prayed that Ext.P6 be quashed. 4. Sri.M.K.Thankkapan - learned Standing Counsel for the KSEB, relied upon Clause 5 of Appendix XIIC of Part I of the Kerala Service Rules, to argue that law is now well settled, that a person who avails of ‘Leave Without Allowances’ before becoming permanent in the cadre, will only be allowed to return and join as a new entrant. He argued that said Clause only protects their right to rejoin service, and not their benefits and such other, which had accrued prior to availing of the leave. He submitted that, however, without noticing this, the petitioner had been granted promotion as Assistant Executive Engineer (Civil) with effect from 22.02.1997; and that it is only when the gradation list was prepared in the year 2009, was this noticed, leading to Ext.P6 order being issued by way of a correction, rather than a WPC 15613/19 5 punitive step, as is now being sought to be projected by the petitioner. He thus prayed that this writ petition be dismissed. 5. I have examined Ext.P6 which is the impugned order issued by the KSEB. 6. The said order proceeds on the premise that the promotion given to the petitioner as Assistant Executive Engineer on 22.02.1997 was wrong, because this has been done without reckoning the fact that she had availed Leave without Allowances before her probation had been declared and had rejoined only on 18.05.1994. Going by the aforementioned Clause of Appendix 12C of Part I KSR, I do not think that this stand of the KSEB is wrong and to that extent, I am of the view that direction No.3 in Ext.P6, namely that ‘pay and associated increment in the cadre of Assistant Engineer (Civil) will be regulated from 18.05.1994’ is in error. 7. However, when it comes to the date of probation of the petitioner as Assistant Executive Engineer – even though she would have been entitled to it only with effect from 23.12.1997, as per the afore reasoning – she was offered the same with effect WPC 15613/19 6 from 22.02.1997 and this continued without any change for over 21 years thereafter. 8. Therefore, even assuming that date of promotion given to the petitioner was wrong, the question is whether the KSEB could have tried to ‘rectify’ it more than two decades later, though it is conceded before this Court by the learned Standing Counsel for the KSEB that the gradation list was prepared as early as in the year 2009. It is here that the judgment of this Court in P.Sasidharan (supra) comes to apply, since it declares the law specifically as to the manner in which the principles of ‘sit back’ theory applies. 9. A glance through the afore precedent would render it indubitable that the learned Bench had considered several judgments of the Honourable Supreme Court and that of this Court, to hold that when a person is allowed to continue in a post for large period of time, for no reason that can be attributed to him/her, but solely on account of lapse on part of the employer, the principles of ‘sit back’ theory comes to play and such position cannot be then altered. WPC 15613/19 7 10. I am in respectful affirmation of the declarations in P.Sasidharan (supra), and am certainly of the view that Ext.P6, to the extent to which it orders pay and allowances of the petitioner in the cadre of Assistant Executive Engineer to be regulated with effect from 23.12.1997 rather than from 22.02.1997, is incapable of approval. 11. That said, however, this does not mean that this Court has found the action of the KSEB to be illegal, but only that they did not do so within reasonable time, thus giving rise to the application of ‘sit back’ theory in its full rigour. 12. Axiomatically, this Court cannot hold that the promotion of the petitioner as Executive Engineer in February 2023 – taking note of the assigned date of promotion as Assistant Executive Engineer on 23.12.1997 – is in error; and I do not propose to disturb it. 13. In fact, it is conceded at the Bar by both the learned counsel for the petitioner, as also the learned Standing Counsel for the KSEB, that a median approach can be adopted in this case, so that the interests of both sides can be equally protected. WPC 15613/19 8 Resultantly, I allow this Writ Petition and set aside Ext.P6, however, only to the extent to which it orders the pay and allowances of the petitioner to be regulated with effect from 23.12.1997 in the post of Assistant Executive Engineer; but confirming all other directions therein. I reiterate that, as a consequence of the above, the petitioner’s promotion as Executive Engineer in February 2023 is also left without interdiction. ``` Sd/- ``` ``` RR ``` ``` DEVAN RAMACHANDRAN JUDGE ``` WPC 15613/19 9 ## **`APPENDIX OF WP(C) 15613/2019`** ``` PETITIONER EXHIBITS EXHIBIT P1TRUE COPY OF THE RELEVANT EXTRACT OF THE GRADATION LIST OF ASSISTANT ENGINEERS(CIVIL) IN THE KSEB ON 30.11.1999 ANBD PUBLISHED ON 19.02.2000. EXHIBIT P2TRUE COPY OF THE ORDER DATED 03.08.2010. EXHIBIT P3TRUE COPY OF THE OBJECTION DATED 08.06.2018. EXHIBIT P4TRUE COPY OF THE JUDGMENT DATED 17.07.2018 IN WRIT PEITTION NO.23633/2018. EXHIBIT P5TRUE COPY OF THE PROCEEDINGS DATED 09.10.2018. EXHIBIT P6TRUE COPY OF THE ORDER DATED 24.12.2018. EXHIBIT P7TRUE COPY OF THE CIRCULAR DATED 27.05.2019 ALONG WITH THE LIST. RESPONDENT EXHIBITS EXHIBIT R1(a)TRUE COPY OF THE RELEVANT PAGES OF THE GRADATION LIST AS ON 30-11-1999. EXHIBIT R1(b)TRUE COPY OF DETAILS OF LEAVE WITHOUT ALLOWANCES OF PETITIONER. ```