T. Vijayalekshmi Amma and M. Ponnachan v. Kerala State Electricity Board and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **WEDNESDAY, THE 18TH DAY OF JANUARY 2017/28TH POUSHA 1938** **WP(C).No. 19453 of 2010 (F) ----------------------------** ## **PETITIONER(S):** **-------------** **1. T.VIJAYALEKSHMI AMMA, DIVISIONAL ACCOUNTANT, ELECTRICAL DIVISION, K.S.E.BOARD PUNALUR. 2. M.PONNACHAN, DIVISIONAL ACCOUNTANT, ELECTRICAL ACCOUNTANT, ELECTRICAL DIVISION, K.S.E. BOARD, KOTTARAKKARA.** **BY ADVS.SRI.N.NANDAKUMARA MENON (SR.) SMT.HENA BAHULEYAN SRI.P.K.MANOJKUMAR** **RESPONDENT(S): --------------** **1. THE KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDYUDHI BHAVANAM, PATTOM, THIRUVANANTHAPRUAM. 2. THE CHIEF ENGINEER, (HRM),K.S.E. BOARD, VYDYUDHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM. 3. ANIL ROSH T.S., ASSISTANT FINANCE OFFICER, OFFICE OF THE FINANCIAL ADVISOR, K.S.E.B.VAYDYUDHI BHAVANAM, PATTOM, TRIVANDRUM-4. * ADDITIONAL R4 TO R13 IMPLEADED** **4. N.U.POULOSE, FINANCE OFFICER, CIVIL CIRLCE, K.S.E. BOARD, MEENCUT, IDUKKI DIST.** **5. P.P.SIVADAS, FINANCE OFFICER, TRANSMISSION CIRCLE, K.S.E. BOARD, ALAPPUZHA.** **6. P.VINAYAN, ASSISTANT FINANCE OFFICER, TRANSMISSION CIRCLE, K.S.E. BARD, PALAKKAD. Msv/** **-2-** **-2-** ## **WP(C).No. 19453 of 2010 (F)** ## **----------------------------** **7. KRISHNAKUMAR, ASSISTANT FINANCE OFFICER, SYSTEM OPERATION CIRCLE, K.S.E.BOARD, KAMALASSERY.** **8. R.SIVASANKARAN, FINANCE OFFICER, TRANSMISSION CIRCLE, K.S.E BOARD, THRISSUR.** **9. C.K.MANOJ, ASSTANT FINANCE OFFICER CIRCLE, K.S.S. BOARD, KOTHAMANGALAM.** **10. S.SREEKUMAR, FINANCE OFFICER, TRNASMISSION CIRCLE, K.S.E BOARD, THIRUVANANTHAPURAM.** **11. T.C.BINDU, FINANCE OFFICER, TRANSMISSION CIRLCE, K.S.E. BOARD, KALAMASSERY.** **12. P.U.SAJJEDKHAN, ASSISTANT FINANCE OFFICER, INVESTIGATION CIRCLE, K.S.E.BOARD, THRISSUR.** **13. CHRLES RUSSEL D.ROZARIO, ASSISTANT FINANCE OFFICER, OFFICE OF THE FINANCIAL ADVISER, K.S.E.BOARD, VYDYUTHI BHAVAN, THIRUVANANTHAPURAM.** *** ADDL. R4-R15 IS IMPLEADED AS PER ORDER DTD.11.8.2010 IN IA.10974/2010** **R1 & R2 BY ADVS. SRI. ASOK M.CHERIYAN, SC, KSEB SRI.K.S.ANIL, SC, KSEB SRI.PULIKOOL ABUBACKER, SC, KSEB R7 & R9 BY ADVS. SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.K.A.BALAN SRI.PETER JOSE CHRISTO SRI.S.A.ANAND SMT.L.AMMU PILLAI** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10-01-2017 ALONG WITH WPC. 16589/2012, THE COURT ON 18-01-2017, DELIVERED THE FOLLOWING:** **msv/** ## **WP(C).No. 19453 of 2010 (F) ---------------------------** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **---------------------EXT.P1:TRUE PHOTOSTAT COPY OF THE ORDER, B.O.NO.181/99 (ESTT.II/9285/82) DTD 22/1/1999 ISSUED BY THE KERALA STATE ELECTRICITY BOARD EXT.P2:TRUE PHOTOSTAT COPY OF THE CIRCULAR NO.EBS1/2001-02 DTD.18.10.2003 ISSUED BY THE KERALA STATE ELECTRICITY BOARD. EXT.P2(a): THE PHOTOSTAT COPY OF THE TRUE EXTRACT OF THE PROVISIONAL SENIORITY LIST APPENDED TO EXT.P2. EXT.P3:TRUE PHOTOSTAT COPY OF THE JUDGMENT DTD.4.7.2007 IN WPC.5629/2006 (T) PASSED BY THE HON'BLE HIGH COURT OF KERALA AT EKM. EXT.P4:TRUE PHOTOSTAT COPY OF THE ORDER DTD.29.2.2008 IN RP.NO.154/2009 m IN WPC.NO.2223/2006 PASSED BY THE HON'BLE HIGH COURT OF KERALA AT ERNAKULAM. EXT.P5:TRUE PHOTOSTAT COPY OF THE ORDER DTD 29/2/2008 IN RP.NO.60/2008 T IN WPC.NO.5629/2006 PASSED BY THE HON'BLE HIGH COURT OF KERALA AT ERNAKULAM. EXT.P6:TRUE PHOTOSTAT COPY OF THE ORDER DTD.7.4.2008 NO.EB3 (a)/2222/DA/OP/07 DTD.7.4.2008 ISSUED BY THE KERALA STATE ELECTRICITY BOARD. EXT.P7:TRUE PHOTOSTAT COPY OF THE ORDER NO.EB.GR.1/GL/DA/ 2009-10 DTD.8.3.2010 ISSUED BY THE CHIEF ENGINEER (HRM) KERALA STATE ELECTRICITY BOARD. EXT.P7(a) THE PHOTOSTAT COPY OF THE TRUE EXTRACT OF THE PROVISIONAL GRADATION LIST OF DIVISIONAL ACCOUNTANT SHOWING THE RANK AND SENIORITY OF THE PETITIONER. EXT.P8:TRUE PHOTOSTAT COPY OF THE OBJECTION DTD.5.4.2010 SUBMITTED BY THE 1ST PETITIONER TO THE 2ND RESPONDENT. EXT.P9:TRUE PHOTOSTAT COPY OF THE OBJECTION DTD.5.4.2010 SUBMITTED BY THE 1ST PETITIONER TO THE 2ND RESPONDENT. EXT.P10:TRUE PHOTOSTAT COPY OF THE COUNTER AFFIDAVIT DTD.29.10.2008 FILED BY THE 2ND RESPONDENT BEFORE THE HON'BLE HIGH COURT OF KERALA AT ERNAKULAM. Msv/** **-2-** **-2-** ## **WP(C).No. 19453 of 2010 (F)** **----------------------------** **EXT.P11:TRUE PHOTOSTAT COPY OF THE INTERIM ORDER DTD.7.7.1993 IN CMP.NO.13228/1993 IN OP.NO.7551/1993 Y PASSED BY THE HON'BLE HIGH COURT OF KERALA AT ERNAKULAM.** **RESPONDENT(S)' EXHIBITS** **-----------------------** **EXT.R3(a): TRUE COPY OF THE NOTIFICATION PUBLISHED IN PSC BULLETTIN DTD.1.9.2001.** **EXT.R3(b): TRUE COPY OF THE ORDER NO.EB.3(a)2220/2008/TVPM DTD.2.5.2008 ISSUED BY THE 1ST RESPONDENT.** **EXT.R3(c): TRUE COPY OF THE ORDER NO.EB.3(a)2220/2008/TVPM DTD.9.12.2008 ISSUED BY THE 1ST RESPONDENT.** **EXT.R3(d): TRUE COPY OF THE ORDER NO.EB.3(a)AFO/PRO/2010 DTD.29.7.2010 ISSUED BY THE 1ST RESPONDENT.** **EXT.R3(e): TRUE COPY OF THE ORDER NO.BO(FM) NO.1521/2010 (ESTT.III/7960/2005) DTD.11.6.2010 ISSUED BY THE 1ST RESPONDENT.** **//TRUE COPY//** **P.S.TO JUDGE** **msv/** ## **ANU SIVARAMAN, J. ----------------------------------------------W.P(C).No. 19453 of 2010 & W.P(C).No. 16589 of 2012 ----------------------------------------------Dated this the 18[th] January, 2017** ## **JUDGMENT** The issue raised in these writ petitions is with regard to the seniority of Divisional Accountants in the Kerala State Electricity Board (KSEB). The petitioners in these writ petitions who were substantively holding the post of Senior Assistant, challenge the seniority list of Divisional Accountants from 13.1.2001 to 5.3.2010 on the ground that it is prepared in violation of the rules governing appointment to the post. In W.P (C).No.16589 of 2012, Exhibit P12 proceedings issued rejecting the objections raised against the provisional seniority list and finalising the said list are also under challenge. 2. Heard learned counsel for the petitioners, learned Standing Counsel for the KSEB and the learned counsel for the contesting respondents. The parties and documents are being referred to as in W.P(C).No.16589 of 2012. 3. It is contended by the learned counsel for the petitioners that appointment to the post of Divisional Accountant is to be made in the ratio 1:1:1 by transfer, _**WP(C).19453/10 & 16589/12**_ 2 promotion from Senior Assistants and by direct recruitment. It is stated that cadre strength of Divisional Accountants at the relevant time was 92 and 31 posts were earmarked for appointment by promotion and 30 posts for direct recruitment. Option was called for from Senior Assistants for promotion to the post of Divisional Accountant, pursuant to which all the petitioners opted for promotion. Pursuant thereto, Exhibit P3 circular was issued enlisting Senior Assistants for promotion as Divisional Assistants in which the petitioners' names were included. Exhibit P3 mentions that the list is in continuation of an earlier existing list. Petitioners had been provisionally promoted as Senior Superintendents after their inclusion in Exhibit P3 list. Later, Exhibit P5 order was issued stating that there are 31 vacancies in the quota of departmental candidates but Senior Assistants, who are provisionally promoted as Senior Superintendents, will be appointed against the said posts only provisionally and will have to vacate office once regular hands join duty. This order was challenged before this Court and by Exhibit P6 judgment, the same was quashed and the petitioners' claim for promotion as Divisional Accountant was directed to be considered. The petitioners were promoted on _**WP(C).19453/10 & 16589/12**_ 3 ## 7.4.2008 pursuant to Exhibit P6 judgment. 4. They were also included in Exhibit P9 provisional seniority list reckoning their date of promotion as 7.4.2008. It is contended by learned counsel appearing for the petitioners that there were several vacancies in the quota set apart for promotion as on 1.8.2004, to which persons included in Exhibit P3 list could have been promoted. It is contended that Exhibit P4 reply received under the Right to Information Act would show that there were only 20 persons working as Divisional Accountants in the promotion quota as on 1.8.2004 and therefore there were 11 vacancies in the quota as on the date. Exhibit P9(a) list, in which the first nine persons are shown as promotees and the next 31 are direct recruits, is therefore challenged on the ground that the petitioners who were included in Exhibit P3 option list should have been promoted to the vacancies available as on 1.8.2004 and placed above the direct recruits appointed on 2.8.2004 and thereafter. It is stated that all the petitioners' seniors had accepted promotion as Senior Superintendents and only eight persons had joined duty pursuant to Exhibit P7 order of promotion and they would be entitled to seniority over the direct recruits. The learned _**WP(C).19453/10 & 16589/12**_ 4 counsel placed reliance on the judgments of this Court as well as the Apex Court in _**Achutan v. Director General of Police**_ [2008(2) KLT 655], _**Keshav Chanddra Joshi v. Union of India**_ [AIR 1991 SC 284], _**A.N.Sehgal v. Raj Ram Sheoran**_ [1992 Supp (1) SCC 304] and _**M.Subba Reddy v. A.P.State Road Transport Corporation**_ [(2004)6 SCC 729] to contend that where quota is prescribed for appointment, it has to be worked out on the basis of date of occurrence of vacancies. 5. A counter affidavit has been filed by the 2[nd] respondent contending that a list of 77 persons including the petitioners who opted for promotion as Divisional Accountants had been prepared on 18.10.1993. This was in continuation of an earlier list in existence as stipulated in Exhibit P3 itself. It is therefore contended that even if the Board had decided to grant retrospective promotion in the 11 vacancies which are alleged to have been in existence as on 1.4.2008, the petitioners would not have been promoted, since several of their seniors included in the two lists would be entitled to be promoted. It is contended by the learned Standing Counsel that all contentions raised by the petitioners against the provisional seniority list were considered and rejected before finding the said lists 5 _**WP(C).19453/10 & 16589/12**_ 6. I have considered the contentions advanced. Even going by the contentions raised by the petitioners, there were several persons included in Exhibit P3 list who had expressed willingness for promotion as Divisional Accountants who were seniors to the petitioners. As such, even if the vacancies which were in existence as on 1.8.2004 are filled up by promotion, the petitioners have not succeeded in establishing that they would be entitled to be appointed against those vacancies. The number of persons who would have been eligible, entitled and willing to accept such promotion, had it been offered at the relevant time being unascertainable. I am unable to accept the contention of the petitioners that all the petitioners' seniors had given up the claim for promotion as Divisional Accountants and had accepted promotion as Senior Superintendents. This is more so in view of the fact that none of such seniors are in the party array. In the above view of the matter, I am unable to accept the contention advanced by the learned counsel for the petitioners that the petitioners are entitled to be placed above the direct recruits in the seniority list. The petitioners, who did not claim any retrospectivity for this promotion by Exhibit P7, cannot _**WP(C).19453/10 & 16589/12**_ 6 raise such a claim as against the seniority list. The writ petitions are accordingly dismissed. **ANU SIVARAMAN JUDGE** _vgs_