United Democratic Electricity Employees Front (UDEEF) and Shaji M. v. Kerala State Electricity Board Ltd. and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 8[TH] DAY OF APRIL 2022 / 18TH CHAITHRA, 1944 WP(C) NO. 3577 OF 2021** ## **PETITIONER/S:** 1 UNITED DEMOCRATIC ELECTRICITY EMPLOYEES FRONT (UDEEF) REGISTRATION NO. 01-01/2003, V.P. MARAKAR SMARAKA MANDIRAM, AMBUJAVILASOM ROAD, THIRUVANANTHAPURAM, REPRESENTED BY ITS GENERAL SECRETARY K.C. RAJAN. 2 SHAJI M AGED 39 YEARS S/O. ASSAINAR, ELECTRICITY WORKER, ELECTRICAL SECTION, MOODADI, EMPLOYEE CODE 1101108, DOB. 26/5/1982, RESIDING AT MANNATHU HOUSE, PURAKKAD P.O, KOZHIKODE DISTRICT, PIN - 673522. BY ADV G.S.REGHUNATH ## **RESPONDENT/S:** 1 KERALA STATE ELECTRICITY BOARD LTD. VAIDYUTHI BHAVAN, PATTOM P.O, THIRUVANANTHAPURAM - 695004., REPRESENTED BY ITS MANAGING DIRECTOR. 2 MANAGING DIRECTOR AND CHAIRMAN KERALA STATE ELECTRICITY BOARD LTD, VAIDYUTHI BHAVAN, PATTOM P.O, THIRUVANANTHAPURAM - 695004. 3 STATE OF KERALA REPRESENTED BY ITS PRINCIPAL SECRETARY(LABOUR), SECRETARIAT, THIRUVANANTHAPURAM - 695001. 4 ADDL.R4 KERALA POWER BOARD OFFICERS' FEDERATION, REPRESENTED BY ITS GENERAL SECRETARY SRI.BIJU PRAKASH.S.P. REG. NO.1644/97, C.M.STEPHEN MEMORIAL BUILDING, POTTAKUZHI, PATTOM.P.O - THIRUVANANTHAPURAM-695 504, AGED 40 YEARS, S/O. V. SUKUMARAN KUTTY, ASSISTANT ENGINEER (ELECTRICAL), KERALA STATE ELECTRICITY BOARD LTD., SYSTEM OPERATION CIRCLE, VYDUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM-695 004, RESIDING AT S.P.NIVAS, ALAMCODE, AMBALATHINKALA.P.O, THIRUVANANTHAPURAM-695 572 W.P.(C) No.3577 of 2021 -2- [ADDL.R4 IS IMPLEADED AS PER ORDER DATED 03/03/2O22 IN I.A:1/22 IN WP(C) 3577/21] BY ADVS. SRI.ASOK M.CHERIAN ELVIN PETER P.J. ABHIJITH.K.ANIRUDHAN ## **OTHER PRESENT:** GP VENUGOPAL V.;SC FOR KSEB K.S.ANIL **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON** **01.04.2022, THE COURT ON 08.04.2022, DELIVERED THE FOLLOWING:** W.P.(C) No.3577 of 2021 -3- ## **JUDGMENT** Dated this the 8[th] day of April, 2022 The first petitioner is a recognised joint bargaining council of registered trade unions having more than 7000 workers of the first respondent as its members. The first petitioner functions with the objective of protecting the rights of its members in all matters connected with their service. 2. The second petitioner is a member of the first petitioner and was appointed as Electricity Worker on 23.05.2014. He was appointed pursuant to a written test conducted by the Kerala Public Service Commission on 10.12.2011. According to the second petitioner, the vacancy to which he was appointed had arisen two years prior to the publication of Ext.P3 notification dated 31.03.2011 inviting application for the post of Electricity Worker. 3. The grievance of the second petitioner ## W.P.(C) No.3577 of 2021 -4- and similarly placed workers is regarding the implementation of the National Pension Scheme (NPS) to the employees appointed in the service of the first respondent after 01.04.2013, which the employees appointed prior to 01.04.2013 are governed by the statutory pension Scheme contained in Part III of KSR. According to the petitioners, the second petitioner and several others had passed the exam conducted by the PSC on 10.12.2011 and thereby became entitled for appointment in the first respondent. Had they been appointed immediately, or at least within a reasonable time, the statutory pension scheme would have been applicable. But, their appointment was delayed, and the NPS was introduced during the interregnum. This fortuitous circumstance cannot result in the NPS being made applicable to them. 4. The first petitioner had agitated the cause of the second petitioner and similarly W.P.(C) No.3577 of 2021 -5- placed employees before the first respondent. This ultimately resulted in Ext.P10 order rejecting the claim for inclusion of the workers, who had passed the qualifying test prior to the introduction of NPS, in the statutory pension scheme. The rejection is on the premise that the date of joining in the service of KSE Board Ltd is the relevant date for deciding the applicability of the pension scheme. Aggrieved, this writ petition is filed seeking to quash Ext.P10 and to issue a writ of mandamus directing the respondents to pass an order allowing the statutory pension scheme provided in Part III of KSR to all workers of the first respondent like the first petitioner, who had undergone the selection process of the first respondent on the basis of notifications issued before 01.04.2013. 5. Heard Adv.G.S.Raghunath for the petitioners and Standing Counsel K.S.Anil for -6- ## W.P.(C) No.3577 of 2021 the respondents. 6. Learned Counsel for the petitioners submitted that Ext.P3 notification, based on which the second petitioner was appointed, was published on 31.03.2011. The second petitioner passed the written examination conducted on 10.12.2011 and thereupon became qualified for appointment. The NPS was introduced by the Government of Kerala on 01.04.2013 and was adopted by the KSEB Ltd with effect from the same date. It is contended that for reason of the second petitioner's appointment being delayed till 23.05.2014, the NPS cannot be made applicable to him, since he became qualified for appointment much prior to 01.04.2013. To buttress the contention, reliance is placed on the decision of the High Court of Delhi in _**Shoorvir Singh Negi v. Union of India**_ (judgment in WP(C) No.5830 of 2014 and connected cases). 7. Learned Standing Counsel for the W.P.(C) No.3577 of 2021 -7- respondent submitted that, appearing for written examination, securing a pass or even inclusion in the ranked list, would not confer right for appointment on a candidate. It is contended that the NPS having come into effect on 01.04.2013, the petitioners cannot wriggle out of the Scheme by contending that the first respondent ought to have appointed them prior to 1.4.2013. Reference is made to G.O.(P) No.20/2013/Fin. dated 07/01/2013 by which the NPS was made applicable to the employees in the service of the Government. It is submitted that the respondent Board has also adopted the NPS with effect from 01.04.2013. 8. In the nature of the contentions urged, it would be apposite to refer to the relevant few provisions of the KS&SSR and the KSR. As per Section 2(1) of KS&SSR; _“a person is said to be “appointed to a service” when in accordance with these rules or in accordance with the rules applicable at the_ W.P.(C) No.3577 of 2021 -8- _time as the case may be, he discharges for the first time the duties of a post borne on the cadre of such service or commences the probation, instruction or training prescribed for members thereof.”_ Going by Rule 9(b) of Part III KSR, the service of every employee begins when he takes charge of the office to which he is first appointed. Indubitably, qualifying service for the purpose of pension covers the actual period of service rendered by an employee. Moreover, the relevant Government and Board orders makes the NPS mandatory for all appointment made on or after 01.04.2013. Therefore, the relevant date for deciding the applicability of the pension scheme is the date of appointment. **==> picture [381 x 13] intentionally omitted <==** decision in _**Shoorvir Singh Negi**_ was rendered by the High Court of Delhi in an entirely different factual scenario. Therein, the petitioners are the successful candidates in the recruitment ## W.P.(C) No.3577 of 2021 -9- process conducted by the Border of Security Force. In their initial medical examination, the petitioners were found unfit for one reason or the other. They were later found fit in review medical examinations and appointed. By that time, their batch mates found fit in the initial medical examination itself, had been appointed. The petitioners alleged that it was on account of the respondents' fault they were kept away from employment and made to report with subsequent batches. It was argued that the petitioners cannot be made to lose seniority or suffer with respect to pensionary benefits on account of the delay in issuing the appointment letters. After elaborate discussion, the petitioners claim for seniority from the date of appointment of their original batchmates was negatived. Thereafter, the court went on to hold as under; _“15. As far as the claim for pensionary benefits based upon the old pension scheme which ended on 31.12.2003 is concerned, we are of the_ W.P.(C) No.3577 of 2021 -10- _opinion that a somewhat different result would have to follow. Undoubtedly, all the petitioners were declared medically fit by 2003. However, they could not be issued with appointment letters and joined subsequently in 2004 or 2005. It is here that the observations in_ _**Avinash Singh** (supra) quoted with approval in_ _**Naveen Kumar Jha** (supra) become relevant. Although the petitioners were declared fit earlier – at least much before the cessation of the old pension rules, there was an administrative delay in the issuance of the appointment letter asking them to join training. In these circumstances, in the interests of justice, we hold that they should be entitled to the benefits of the old pension scheme.”_ A careful scrutiny of the above extracted portion shows that the petitioners therein were found entitled to the benefit of the old pension scheme, as they had been declared fit based on the review medical examination even before the old scheme was ended. Herein, the situation is entirely different. The second petitioner had merely qualified in the written test conducted by the PSC, which, by itself, will not confer him with a right to appointment. The law on the point W.P.(C) No.3577 of 2021 -11- is well settled by a series of decisions of the Apex Court stating from _**Shankarshan Dash v. Union of India [(1991) 3 SCC 47]**_ onwards, consistently holding that mere inclusion in the ranked list does not confer the candidate with the right to appointment. For the reasons aforementioned, the writ petition is dismissed. Sd/- **V.G.ARUN JUDGE** Scl/ W.P.(C) No.3577 of 2021 -12- ## **APPENDIX OF WP(C) 3577/2021** PETITIONER EXHIBITS |EXHIBIT P1|TRUE COPY OF THE REGISTRATION| |---|---| ||CERTIFICATE BEARING NO. 01-01/2003| ||ISSUED TO 1ST PETITIONER.| |EXHIBIT P2|TRUE COPY OF THE AGREEMENT DATED| ||1.6.2014 ENTERED INTO BETWEEN KERALA| ||ELECTRICITY EMPLOYEES| ||CONFEDERATION(INTUC) IN K.S.E.B| ||LIMITED AND EMPLOYEES ORGANIZATION| ||(STU)| |EXHIBIT P3|TRUE COPY OF THE GAZETTE NOTIFICATION| ||DATED 31.3.2011.| |EXHIBIT P4|TRUE COPY OF THE ADMISSION TICKET| ||ISSUED TO 2ND PETITIONER FOR AN| ||EXAMINATION CONDUCTED BY THE KERALA| ||PUBLIC SERVICE COMMISSION.| |EXHIBIT P5|TRUE COPY OF THE JUDGMENT IN WPC| ||NO.2810/2016 DATED 17.08.2016 BY THE| ||HON'BLE SUPREME COURT.| |EXHIBIT P6|TRUE COPY OF THE ORDER IN SLP DIARY| ||NO.39335/2017 DATED 8.1.2018 OF THE| ||HON'BLE SUPREME COURT UPHOLDING| ||EXHIBIT P7.| |EXHIBIT P7|TRUE COPY OF THE REPRESENTATION DATED| ||4.9.2020 SUBMITTED BY GENERAL| ||SECRETARY OF THE KERALA ELECTRICITY| ||EMPLOYEES CONFEDERATION TO THE 1ST| ||RESPONDENT.| |EXHIBIT P8|TRUE COPY OF THE REPRESENTATION DATED| ||7.10.2020 SUBMITTED BY GENERAL| ||SECRETARY, UDEEF BEFORE THE CHAIRMAN,| ||K.S.E.B LIMITED.| |EXHIBIT P9|TRUE COPY OF THE JUDGMENT DATED| ||14.10.2020 IN WP(C) NO. 21696/2020.| |EXHIBIT P10|TRUE COPY OF THE ORDER DATED 8.1.2021| ||PASSED BY THE 2ND RESPONDENT.|