Shaji K.P. v. Kerala State Electricity Board Limited & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **FRIDAY, THE 15TH DAY OF NOVEMBER 2019 / 24TH KARTHIKA, 1941** ## **WP(C).NO.11888 OF 2018(I)** ## **PETITIONER:** **SHAJI.K.P, AGED 51, S/O.K.V.PAULOSE, KOCHUMALAYIL HOUSE, KARIKKODU, MULANTHURUTHI P.O., ERNAKULAM.(NOW WORKING AS DIVISIONAL ACCOUNTANT, ELECTRICAL DIVISION, KERALA STATE ELECTRICITY BOARD LTD., PALLOM, KOTTAYAM).** **BY ADV. SRI.K.S.ANIL** ## **RESPONDENTS:** - **1 KERALA STATE ELECTRICITY BOARD LIMITED REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR,VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM - 695 004.** - **2 THE CHIEF ENGINEER (HRM), KERALA STATE ELECTRICITY BOARD LTD., VYDYUTHI BHAVANAM, PATTOM,THIRUVANANTHAPURAM - 695 004.** - **3 DIVAKARAN V., ASSISTANT FINANCE OFFICER,SYSTEM OPERATION CIRCLE,KSEB LTD., KANJIRODE, KANNUR - 670 592.** - **4 SURESH R., ASSISTANT FINANCE OFFICER,SPECIAL OFFICER (REVENUE), KSEB LTD., VYDHUTHI BHAVANAM,PATTOM, THIRUVANANTHAPURAM - 695 004.** - **5 AJITHAKUMAR P. ASSISTANT FINANCE OFFICER,GENERATION CIRCLE, KSEB LTD., MOOZHIYAR, PATHANAMTHITTA - 689 662.** - **6 RAJEEV L., ASSISTANT FINANCE OFFICER,OFFICE OF THE CHIEF INTERNAL AUDITOR (WORKS AUDIT),KSEB LTD., VYDHUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM - 695 004.** - **7 USHA S., ASSISTANT FINANCE OFFICER,OFFICE OF THE FINANCIAL ADVISOR, KSEB LTD., VYDHUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM - 695 004.** - **8 MADHAVAN POTTY K., ASSISTANT FINANCE OFFICER, OFFICE** **WP(C).NO.11888 OF 2018(I)** 2 **OF THE CHIEF INTERNAL AUDITOR (WORKS AUDIT), KSEB LTD., VYDHUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM - 695 004.** - **9 RANI VARGHESE DIVISIONAL ACCOUNTS OFFICER,KSEB LTD., ELECTRICAL DIVISION, POWER HOUSE ROAD, ERNAKULAM - 682 018.** - **10 RENJAN C.** - **DIVISIONAL ACCOUNTS OFFICER,OFFICE OF THE SECRETARY, KSEB LTD., VYDHUTH BHAVANAM,PATTOM, THIRUVANANTHAPURAM - 695 001.** - **11 PRAKASAN N. DIVISIONAL ACCOUNTS OFFICER,KOZHIKODE DIESEL POWER PROJECT,KSEB LTD., NALLALAM, KOZHIKODE - 673 027.** - **12 POULOSE P.T., ASSISTANT FINANCE OFFICER,GENERATION CIRCLE, KSEB LTD.,VYDHUTHI BHAVANAM, POONKUNNAM, THRISSUR - 680 002.** - **13 REMESH KUMAR G. DIVISIONAL ACCOUNTS OFFICER,OFFICE OF THE CHIEF ENGINEER (HRM),KSEB LTD., VYDHUTHI BHAVANAM,PATTOM, THIRUVANANTHAPURAM - 695 004.** - **14 RAMANI S. DIVISIONAL ACCOUNTS OFFICER,KSEB LTD., OFFICE OF THE CHIEF INTERNAL AUDITOR,VYDHUTHI BHAVANAM, PATTOM,THIRUVANANTHAPURAM - 695 004.** - **15 PREMACHANDRAN P.S.** **DIVISIONAL ACCOUNTS OFFICER,KSEB LTD., OFFICE OF THE FINANCIAL ADVISOR,VYDHUTHI BHAVANAM, PATTOM,THIRUVANANTHAPURAM - 695 004.** - **16 ANILKUMAR K.G.** - **DIVISIONAL ACCOUNTS OFFICER,KSEB LTD., OFFICE OF THE CHIEF INTERNAL AUDITOR,VYDHUTHI BHAVANAM, PATTOM,THIRUVANANTHAPURAM - 695 004.** **BY SMT.ANEETHA A.G., SC, KERALA STATE ELECTRICITY BOARD LIMITED BY ADV.SRI.P.C.HARIDAS** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).NO.11888 OF 2018(I)** 3 ## **J U D G M E N T** Petitioner, who is presently working as a Divisional Accountant, claims that he was entitled to be promoted to that post in 2009 and seeks a direction to respondents to re-assign his seniority, while challenging Ext.P23 order by which his representation was rejected. He challenges the further promotions granted in Ext.24 order to the post of Assistant Finance Officer. 2. Petitioner joined the Kerala State Electricity Board ('the Board' for short) as Cashier on 04.02.1993. He was promoted as Senior Assistant with effect from 11.07.1994. He passed the test qualifications in the year 1993. He was promoted as Senior Superintendent on 25.08.2005. He claims that he was test qualified for promotion as Divisional Accountant and that pursuant to Ext.P5 circular inviting applications from among Senior Assistants with 10 years service and Accounts Test (Higher) for **WP(C).NO.11888 OF 2018(I)** 4 promotion as Divisional Accountants on 21.11.2008, he had submitted application and it was forwarded as per Ext.P6 letter of the Deputy Chief Engineer. He claims that he had submitted Ext.P7 representation on 11.05.2009 requesting to extend him the benefit of the judgment in W.P.(C)No. 4391 of 2009 and to consider his application for promotion as Divisional Accountant; but the respondents did not take any action on that and several of his juniors got promotion as Divisional Accountants. He claims that on the basis of orders/judgments Exts.P9 and P10 in writ petitions filed by those who were working as Senior Superintendents like him were granted promotion as Divisional Accountant; in the light of those judgments he again submitted Ext.P11 representation. Whileso the Board issued Ext.P12 circular on 11.04.2014 inviting applications for appointment to the post of Divisional Accountant. He was granted promotion as Divisional Accountant as per Ext.P16 order dated 21.04.2015. On promotion as **WP(C).NO.11888 OF 2018(I)** 5 Divisional Accountant he submitted Ext.P17 representation dated 31.07.2015, requesting for assigning him seniority in the gradation list of Divisional Accountant, pointing out that his immediate junior at Sl. No.57 in Ext.P8 gradation list was appointed as Divisional Accountant on 12.01.2009 and requested to place him above him. It is stated that he submitted subsequent representations and thereafter filed W.P.(C).No.19368 of 2016, which was disposed of as per Ext.P21 judgment directing consideration of his representation with notice to him. The representation was rejected as per Ext.P23 order stating that he can be assigned seniority only on the basis of date of order of his promotion which was only on 07.04.2015 in accordance with Rule 27(a) of KS&SSR. This writ petition was filed at that stage challenging Ext.P23 order. Petitioner claimed that respondents 3 to 16 were his juniors in the cadre of Senior Assistants and that they got promotion in preference to him as **WP(C).NO.11888 OF 2018(I)** 6 ## Divisional Accountant. 3. The respondents 3 & 15 have filed a common counter affidavit seriously opposing the reliefs pointing out the delay in filing the writ petition in 2018, claiming promotion in preference to them. They pointed out that they were promoted as early as on 29.01.2009 as per order dated 12.01.2009 and petitioner has not even challenged the order of their promotion. It is also pointed out that 3[rd] respondent has been given further promotion as Assistant Finance Officer as per Ext.P24 order. It is also pointed out that petitioner did not have any complaint as against their promotions at the relevant time or at least within a reasonable time after their promotion. It is also their case that petitioner who was promoted as Senior Superintendent continued to enjoy the benefit of that promotion without any demur. Producing Ext.R15(a) seniority list they have stated that petitioner was already assigned seniority at Sl.No.801 in the gradation list of senior **WP(C).NO.11888 OF 2018(I)** 7 superintendents published as on 17.05.2010 and therefore he ceased to be a member of the cadre of senior assistant and that he is not entitled to be promoted as Divisional Accountant in preference to them. It is also pointed out that Ext.P9 or P10 judgments relied on by the petitioner would not be applicable to the case of the petitioner, as the petitioners therein approached this Court immediately after the vacancies arose/ promotion of juniors. According to the respondents, petitioner has become a permanent member in the category of senior superintendent and he lost his lien. Even otherwise it is pointed out that the settled seniority of the respondents cannot be unsettled at this distance of time. It is also pointed out that Exts.P9 or P10 judgment would not help the petitioner in any manner on the basis of a writ petition filed after about 9 years of the promotion of the respondents. 4. Relying on the judgments of the Apex Court in **Shiba Shankar Mohapatra and Others v. State of** **WP(C).NO.11888 OF 2018(I)** 8 **Orissa and Others** [AIR 2010 SC 706], the respondents pointed that the seniority of the respondents cannot be unsettled after a period of 3 to 4 years that too at the instance of petitioner, who did not have any complaint against their promotion. 5. Learned counsel for respondents 3 and 15 also argued that petitioner who did not choose to challenge their promotion is not entitled to any revision of seniority in the light of the Full Bench judgment of this Court in **M.P.Raghavan Nair v. State Insurance Officer and Others** [1971 KLT 583]. Respondents also have stated that the promotion of the petitioner was not provisional and there is no material produced by the petitioner to that effect. Even assuming that it is provisional respondents pointed out that petitioner is not entitled to any relief as against the respondents. According to them even promotion granted to the petitioner as Divisional Accountant itself is illegal. It is also their contention that promotion granted to the **WP(C).NO.11888 OF 2018(I)** 9 petitioner is also not under challenge, in case he is aggrieved by the grant of the retrospective promotion. 6. Official respondents have filed a counter affidavit stating that Shri George Varghese was granted promotion as the Divisional Accountant and he was re-assigned seniority in the cadre of Divisional Accountant with effect from the date of promotion. They have further stated that the case of the petitioner would be considered. As rightly pointed out by the learned Counsel for the respondents 3 and 15, petitioner who did not choose to challenge the orders promoting them and did not approach this Court within a reasonable time after their promotion as Divisional Accountant, respondents 3 and 15 were entitled to sit back with their settled seniority. 7. It is seen that respondents 3 and 15 alone have filed counter affidavit and they alone are having objection against the claim of the petitioner. Therefore their seniority in the category of **WP(C).NO.11888 OF 2018(I)** 10 Divisional Accountant and further promotion are not liable to be disturbed. As the 2[nd] respondent has in the counter affidavit stated that the claim of the petitioner would be considered, the writ petition is disposed of with a direction to the second respondent to consider the claim of the petitioner, after affording an opportunity of hearing to the petitioner and all the Senior Assistants, who were promoted as Divisional Accountants between 2009 and before his promotion in 2015 and to pass orders within a period of 'three months' from the date of receipt of a copy of the judgment. At any rate the seniority assigned to respondents 3 and 15 shall not be disturbed. Sd/- **P.V.ASHA, JUDGE.** AS 11 ## **WP(C).NO.11888 OF 2018(I)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE CERTIFICATE ISSUED TO THE PETITIONER FOR PASSING ACCOUNTS TEST (LOWER) DT. 25.1.94.** **EXHIBIT P2 TRUE COPY OF THE CERTIFICATE ISSUED TO THE PETITIONER FOR PASSING ACCOUNTS TEST (HIGHER) DT. 25.1.94.** - **EXHIBIT P3 TRUE COPY OF THE CERTIFICATE ISSUED TO THE PETITIONER DEPARTMENTAL TEST FOR MINISTERIAL STAFF OF THE KERALA STATE ELECTRICITY BOARD IN THE YEAR 1993 DT. 25.1.94.** **EXHIBIT P4 TRUE COPY OF THE BOARD ORDER VIDE NO.181/99 (ESTT.II/9258/82) DATED 22.1.99.** - **EXHIBIT P5 TRUE COPY OF THE CIRCULAR DATED 21.11.2008 OF THE 2ND RESPONDENT.** - **EXHIBIT P6 TRUE COPY OF THE FORWARDING LETTER OF THE 3RD RESPONDENT DATED 16.12.2008.** - **EXHIBIT P7 TRUE COPY OF THE REPRESENTATION DATED 11.05.2009 SENT BY PETITIONER TO THE 2ND RESPONDENT THROUGH PROPER CHANNEL.** - **EXHIBIT P8 TRUE COPY OF THE FORWARDING LETTER OF THE 3RD RESPONDENT DATED 13.05.2009.** - **EXHIBIT P9 TRUE COPY OF THE JUDGMENT IN W.P.(C) NO.5629 OF 2006 DATED 4.7.2007.** - **EXHIBIT P10 TRUE COPY OF THE JUDGMENT IN W.P.(C) NO.37156 OF 2008 DATED 28.11.2012.** - **EXHIBIT P11 TRUE COPY OF THE REPRESENTATION DATED 23.10.2014 SENT BY PETITIONER THROUGH PROPER CHANNEL REQUESTING THE 2ND RESPONDENT.** **WP(C).NO.11888 OF 2018(I)** 12 **EXHIBIT P12 TRUE COPY OF THE NOTICE DATED 11.04.2014 ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P13 TRUE COPY OF THE ORDER DATED 11.03.2013 OF THE 2ND RESPONDENT.** - **EXHIBIT P14 TRUE COPY OF THE SENIORITY LIST OF DIVISIONAL ACCOUNTANT RECRUITED/PROMOTED DURING THE PERIOD FROM 13.12.2001 TO 05.03.2010.** - **EXHIBIT P15 TRUE COPY OF THE JUDGMENT IN WRIT PETITION NO.33230 OF 2014 DATED 10.12.2014.** - **EXHIBIT P16 TRUE COPY OF THE ORDER DATED 21.04.2015 OF THE 2ND RESPONDENT.** - **EXHIBIT P17 TRUE COPY OF THE REPRESENTATION THROUGH PROPER CHANNEL BEFORE THE 2ND RESPONDENT ON 31.07.2015.** - **EXHIBIT P18 TRUE COPY OF THE PROVISIONAL GRADATION LIST IN THE CADRE OF DIVISIONAL ACCOUNTANTS AS ON 01.01.2016.** - **EXHIBIT P19 TRUE COPY OF THE REPRESENTATION THROUGH PROPER CHANNEL BEFORE THE 2ND RESPONDENT ON 10.02.2016.** - **EXHIBIT P20 TRUE COPY OF THE SELECT LIST OF ELIGIBLE OFFICERS FOR PROMOTION TO THE CADRE OF ASSISTANT FINANCE OFFICER.** - **EXHIBIT P21 TRUE COPY OF THE JUDGMENT IN W.P.C.NO.19368/2016 DATED 06.06.2016.** - **EXHIBIT P22 TRUE COPY OF THE PROMOTION ORDER DATED 09.08.2016.** - **EXHIBIT P23 TRUE COPY OF THE PROCEEDINGS DATED 25.10.2016.** - **EXHIBIT P24 TRUE COPY OF THE LETTER DATED 08.03.2018.** **WP(C).NO.11888 OF 2018(I)** 13 ## **RESPONDENT'S EXHIBITS:** **EXT.R15A TRUE COPY OF THE RELEVANT PORTIONS OF GRADATION LIST OF SENIOR SUPERINTENDENTS, AS ON 17.05.2010.**