W.P.(C) Nos. 21293 of 2020 and 11449 of 2021 vs. Kerala State Electricity Board and Others

_**WP(C).21293/20 & 11449/21**_ 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 3[RD] DAY OF JUNE 2022 / 13TH JYAISHTA, 1944** **WP(C) NO. 11449 OF 2021** ## **PETITIONER/S:** 1 RAJESH S. AGED 53 YEARS S/O. SASTHARASARMANNAMBOOTHIRI, OSSERILLILLAM, KUMMANNOOR P.O., KOTTAYAM DISTRICT, 686 572 WORKING AS SUB ENGINEER (CIVIL), TRANSMISSION CIRCLE, POOVANTHURUTHU, KOTTAYAM DISTRICT. 2 SAJITH D.I. AGED 49 YEARS S/O. K.DIVAKARAN, VYSHAKHAM, THEMPRA, TKMC P.O., KOLLAM, 691 005 WORKING AS SUB ENGINEER (CIVIL), C.M. DIVISION, PALLOM, KOTTAYAM. 3 BIJU M. AGED 49 YEARS S/O. MADHAVAN K.P., ATHIRA, KALAPPURA WARD, THUMPOLY P.O., ALAPPUZHA, PIN-688 008 WORKING AS ENGINEER (CIVIL), TRANSMISSION CIRCLE, ALAPPUZHA. BY ADVS. O.D.SIVADAS S.SUNIL NARAYANAN ## **RESPONDENT/S:** 1 THE KERALA STATE ELECTRICITY BOARD VAIDHUTHI BHAVAN, THIRUVANANTHAPURAM, REPRESENTED BY SECRETARY, PIN-695 001. 2 THE CHIEF ENGINEER (HRM) KERALA STATE ELECTRICITY BOARD, VAIDHUTHI BHAVAN, THIRUVANANTHAPURAM, PIN-695 001. 3 THE SECRETARY KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM, PIN-695 004. _**WP(C).21293/20 & 11449/21**_ 2 BY ADV ASOK M.CHERIAN ## **OTHER PRESENT:** SC FOR KSEB K.S.ANIL; SC FOR KPSC P.C.SASIDHARAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18.3.2022 ALONG WITH WP(C).21293/2020, AND THE COURT ON 03.06.2022 DELIVERED THE FOLLOWING: _**WP(C).21293/20 & 11449/21**_ 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 3[RD] DAY OF JUNE 2022 / 13TH JYAISHTA, 1944** **WP(C) NO. 21293 OF 2020** ## **PETITIONER/S:** 1 MINI K.N AGED 54 YEARS D/O. NARAYANAN,KAPPLIYIL VEEDU, KARINILAM P.O., MUNDAKKAYAM, KOTTAYAM-686 513, WORKING AS SUB ENGINEER (CIVIL), CHATHANKOTTUNADA SHEP, KAVILAMPARA P.O., THOTTUPPALAM, KOZHIKODE 2 SIVAPRASAD.B., S/O. BALAKRISHNAN.N., SIVANILAYAM, THEVALAPPURAM P.O., PUTHOOR, KOTTARAKKARA, KOLLAM DISTRICT-691 507, WORKING AS SUB ENGINEER (CIVIL), INVESTIGATION DIVISION, KOTTARAKKARA 3 SUNILKUMAR.V., S/O. V.VISWANATHAN, VELIKKAL, MANAKAVU P.O., KOZHIKODE-673 007, WORKING AS SUB ENGINEER (CIVIL), CIVIL SUB DIVISION, KAKKAYAM, KOZHIKODE 4 MUHAMMED HUSSAIN.K.S., S/O. SADAKKULLA.K., KADAMBOTTU HOUSE, ERIYAD P.O., KODUNGALLOOR, THRISSUR-680 666,WORKING AS SUB ENGINEER (CIVIL),CIVIL SUB DIVISION I, KANNAMKUZHI, THRISSUR 5 REMADEVY.S., S/O. KRISHNAN NAIR, GAYA, MUKKOLAKKAL P.O., THIRUVANANTHAPURAM-695 043, WORKING AS SUB ENGINEER (CIVIL), VYDYUTHI BHAVANAM, THIRUVANANTHAPURAM 6 RIFAS.A., S/O. ABDUL RAHIMAN KUNJU, PADA-NORTH, CHAKKANTAYYATHU, KARUNAGAPPALLY P.O., KOLLAM-690 518 WORKING AS SUB ENGINEER (CIVIL),SPIN AND CONSULTANCY, THIRUVANANTHAPURAM 7 MUHAMMED ASLAM.J., S/O.JUBAIR, SULFI NIVAS, T.C.NO.8/662(2), _**WP(C).21293/20 & 11449/21**_ 4 TI.V.NAGAR, THIRUMALA, THIRUVANANTHAPURAM, WORKING AS SUB ENGINEER (CIVIL), HEAD WORKS AND TUNNEL DIVISION, PES, MUNNAR 8 AJAYAN.P.I., S/. M.P.ACHUTHAN NAIR,KARTHIKA, ILLIAPPILAPRAMBA P.O., KOZHIKODE-673 017, WORKING AS SUB ENGINEER (CIVIL), ELECTRICAL CIRCLE, KOZHIKODE, VYDYUTHI BHAVANAM P.O., NADAKKAVU 9 RAJESH.S. S/O.SASTHARASARMAN NAMBOOTHIRI, OSSERIL ILLAM, KUMMANNOOR P.O., KOTTAYAM DISTRICT-686 572WORKING AS SUB ENGINEER (CIVIL). LADRUM AND MARMALA, SHEP NADACKAL P.O., ERATTUPETTA, KOTTAYAM DISTRICT-686 121 10 SHERLY V.J., D/O. R.JOSEPH, KUTTEVELIYIL , MUHAMMA P.O., ALAPPUZHA-688 525,WORKING AS SUB ENGINEER (CIVIL) TRANSMISSION CIRCLE, POOVANTHURUTHU,KOTTAYAM-686 012 11 SINDHUKUMARI.R.S., W/O. ASOKAN, ASHOKAM, PULYARAKONAM, THIRUVANANTHAPURAM, WORKING AS SUB ENGINEER (CIVIL),GENERAL CIRCLE, MOOZHIYAR, PATHANAMTHITTA 12 SREELEKHA.K., D/O. KRISHNAMMA, MANAVARI, ANAVOOR P.O., THIRUVANANTHAPURAM-695 124, WORKING AS SUB ENGINEER (CIVIL),LINE CONSTRUCTION SUB DIVISION, BALARAMAPURAM-THIRUVANANTHAPURAM 13 SAJITH D.I., S/O. K.DIVAKARAN, VYSHAKHAN, THEMPRA, TKMC P.O.,KOLAM-691 005, WORKING AS SUB ENGINEER (CIVIL), C.M.DIVISION,PALLOM, KOTTAYAM-686 007 14 BIJU.M., S/O.MADHAVAN.K.P.,ATHIRA, KALAPPURA WARD, THUMPOLY P.O., ALAPPUZHA,PIN-688 008,WORKING AS SUB ENGINEER (CIVIL),TRANSMISSION CIRCLE, ALAPPUZHA BY ADVS. O.D.SIVADAS SRI.S.SUNIL NARAYANAN _**WP(C).21293/20 & 11449/21**_ 5 ## **RESPONDENT/S:** 1 THE KERALA STATE ELECTRICITY BOARD VAIDHUTHIBHAVAN, THIRUVANANTHAPURAM,REPRESENTED BY SECRETARY,PIN-695 001 2 THE CHIEF ENGINEER, (HRM), KERALA STATE ELECTRICITY BOARD, VAIDHUTHIBHAVAN, THIRUVANANTHAPURAM,,PIN-695 001 BY ADV SRI.ASOK M.CHERIAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18.3.2022 ALONG WITH WP(C).NO.11449/21, THE COURT ON 3.6.2022 DELIVERED THE FOLLOWING: _**WP(C).21293/20 & 11449/21**_ 6 ## **V.G.ARUN, J. ----------------------------------------------W.P(C).Nos. 21293 of 2020 and 11449 of 2021 ----------------------------------------------Dated this the 3[rd] day of June, 2022** ## **JUDGMENT** The petitioners had entered the service of the Kerala State Electricity Board (KSEB) as Overseers in the year 2000. They were promoted to the cadre of Sub Engineers (Civil) long back. The next promotion post for Sub Engineer (Civil) is Assistant Engineer (Civil). The qualification and method of appointment for the post of Assistant Engineer (Civil) [erstwhile 'Junior Engineer (Civil)'] is governed by Exhibit P1 Board Order dated 7.8.1969. For convenience, the documents are referred to as described in W.P(C).No.11449 of 2021. 2. Under Exhibit P1, 50% of the total cadre strength of Assistant Engineer (Civil) is earmarked for direct recruitment through Public Service Commission and the remaining 50%, by promotion. The promotion quota is apportioned in the ratio 3:2 among Sub Engineers (Civil) having Diploma qualification and those with ITI Certificates. The petitioners belong to the 20% quota set apart for ITI certificate holders. The petitioners are aggrieved by the Seniority Protection Clause in Note 2 to _**WP(C).21293/20 & 11449/21**_ 7 ## Appendix of Exhibit P1 order, extracted here under; “ _A senior Diploma holder will not be superseded by a junior certificate holder for promotion in order to maintain the ratio 3:2_ .” Petitioners allege that the offensive clause has resulted in their promotion chances being curtailed almost completely curtailed. From March, 2008 onwards only four persons have been promoted as Assistant Engineer (Civil) in the 20% quota reserved for ITI certificate holders. The last promotion from ITI certificate holders was in March, 2008. There are large number of vacancies being available in the 20% quota. Those vacancies are being filled up by promoting Diploma holders provisionally, in blatant violation of the quota rule. Hence, these writ petitions. 3. Adv.O.D.Sivadas, learned Counsel for the petitioners, contended that the offensive clause is patently illegal, being violative of the petitioners' right to be considered for promotion. It is submitted that similarly situated employees had approached this Court earlier and by P5 judgment, the first respondent was directed to consider and pass orders on their representation. In purported compliance of the judgment, Exhibit P6 order was issued, without proper consideration or reasoning. It is contended that the quota system having become unworkable by reason of the offensive clause, the same is liable to be substituted with an _**WP(C).21293/20 & 11449/21**_ 8 appropriate clause to meet the needs of the situation. The petitioners and other similarly situated persons are made to wait indefinitely for the reason that, among the Diploma holders, there being one or more persons with longer service. This invariably results in the ITI certificate holders never getting a chance for promotion as Assistant Engineer (Civil) and made to retire as Sub Engineer (Civil) after stagnating in that post for more than 20 years. Reliance is placed on the decision in _**Direct Recruit Class II Engg. Officers' Assn. v. State of Maharashtra**_ **,** [(1990) 2 SCC 715] **,** in support of the contention that, if an existing quota rule becomes impossible of adherence, it shall be substituted by an appropriate rule to meet the needs of the situation. Reference is made to Ext.P2 to point out that, considering the plight of the ITI certificate holders the Legal Advisor of the Board had advised to make suitable amendments to Ext.P1 and a consensus was arrived at between the Board and the Unions to remove the offensive clause and to adopt the method of promotion in the Electrical Wing for the Civil Wing also. The suggestion was made in view of the fact that, in spite of there being a seniority protection clause, the same is not made applicable for promotion as Assistant Engineer (Electrical), for which post also the same quota is prescribed. Unfortunately, that decision was upset in a _**WP(C).21293/20 & 11449/21**_ 9 subsequent meeting, without assigning any reason whatsoever. 4. Learned Standing Counsel for the Board submitted that the petitioners are juniors to the Sub Engineers having Diploma qualification and are therefore not eligible for promotion. The contention that the petitioners are denied promotion is without basis, since ITI certificate holders are being promoted on attaining the eligibility prescribed in Ext.P1. It is submitted that the Board never undermined the quota rule and only temporary promotions, in accordance with Rule 31 of Part II KS & SSR, were made to the post of Assistant Engineer (Civil), that too, from the combined list comprising of both Diploma holders and ITI Certificate holders. Ext.P1 Board Order was issued after rigorous assessment of all aspects involved and the provisions therein were incorporated with the objective of forming an efficient cadre in the civil stream. Therefore, the petitioners cannot term the seniority protection clause as arbitrary and illegal. 5. The contention of the petitioners that no Sub Engineer (Civil) with ITI certificate was promoted as Assistant Engineer (Civil) after 2008 is not seen disputed. The contention that only four ITI Certificate holders are working as Assistant Engineer (Civil) in KSEB and more than 60 vacancies are available in their quota is also not refuted. Being so, there is merit in the _**WP(C).21293/20 & 11449/21**_ 10 contention that the seniority protection clause in Exhibit P1 has resulted in majority of the ITI Certificate holders retiring as Sub Engineer (Civil), seems well founded. The resultant position is that, in spite of having provided a promotion quota and availability of vacancies, the ITI certificate holders have only minimal chance of promotion. A similar situation, where, in spite of fixing the ratio for recruitment from different sources, the quota rule could not be followed for a number of years due to impossibility of performance, was considered in _**Direct Recruit Class-II Engineering Officers’ Association and Others**_ (supra) _**.**_ After elaborate consideration of the issue, the Honourable Supreme Court summed up its conclusion at Paragraph 47. The contextually relevant conclusions are as under; _“(a) When appointments are made from more than one source, it is permissible to fix the ratio for recruitment from the different sources, and if rules are framed in this regard they must ordinarily be followed strictly._ _(b) If it becomes impossible to adhere to the existing quota rule, it should be substituted by an appropriate rule to meet the needs of the situation. In case, however, the quota rule is not followed continuously for a number of years because it was impossible to do so the inference is irresistible that the quota rule had broken down._ _(c) Where the quota rule has broken down and the_ _**WP(C).21293/20 & 11449/21**_ 11 _appointments are made from one source in excess of the quota, but are made after following the procedure prescribed by the rules for the appointment, the appointees should not be pushed down below the appointees from the other source inducted in the service at a later date._ _(d) Where the rules permit the authorities to relax the provisions relating to the quota, ordinarily a presumption should be raised that there was such relaxation when there is a deviation from the quota rule. (e) The quota for recruitment from the different sources may be prescribed by executive instructions, if the rules are silent on the subject._ _(f) If the quota rule is prescribed by an executive instruction, and is not followed continuously for a number of years, the inference is that the executive instruction has ceased to remain operative.”_ _(underlining supplied)_ 6. In the instant case also, there seems to be merit in the contention that the quota rule is rendered unworkable by reason of the seniority protection clause. It is also on record that the Board and the Unions had discussed and resolved to remove the seniority protection clause, but that decision was subsequently overturned without assigning any reason. It is also pertinent to note that in Exhibit P5 judgment this Court had specifically directed the 1st respondent to consider and pass orders on the representation filed by an identically placed person and raising the same grievance. Surprisingly, in Exhibit P6 order, the 1[st] _**WP(C).21293/20 & 11449/21**_ 12 respondent failed to consider the relevant aspects. The order is even otherwise bad for complete absence of reasons. 7. Even though promotion is not a fundamental right, consideration for promotion is now recognised as a fundamental right (see _**Ajay Kumar Shukla v. Arvind Rai**_ [2021(6) KLT OnLine 1027 (SC)]. Here, the fundamental right of the petitioners to be considered for promotion is being denied due to the seniority protection clause, as is evident from the fact that no promotion from among ITI Certificate holders in the category of Sub Engineers (Civil) was affected after 2008. The above actual aspect leads to an inference that the quota rule has broken down. If so, the dictum laid down in _**Direct Recruit Class-II Engineering Officers’ Association**_ (supra) will apply. Based on the above findings, the writ petition is disposed of as under; - (I) Exhibit P6 order is set aside. - (II) The 1[st] respondent is directed to take a decision on the question whether the Seniority Protection Clause in Exhibit P1 is to be continued or not. - (III) The above decision shall be taken within three months, after adverting to the observations in this judgment and the conclusions in _**Direct Recruit**_ _**WP(C).21293/20 & 11449/21**_ 13 ## _**Class-II Engineering Officers’ Association**_ (supra) extracted above. - (IV) Before taking the decision, an opportunity of hearing shall be afforded to the named representatives of the ITI Certificate holders and the Diploma holders in the cadre of Sub Engineer (Civil). - (V) All provisional promotions affected to the post of Assistant Engineer (Civil), to the quota set apart for Sub Engineers (Civil) with ITI Certificates, will be subject to the final outcome of the decision taken by the 1[st] respondent. ## **Sd/-** **V.G.ARUN, JUDGE** _vgs_ _**WP(C).21293/20 & 11449/21**_ 14 ## **APPENDIX OF WP(C) 21293/2020** PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE ORDER DATED 25.07.2019 BY THE 2ND RESPONDENT GRANTING PROVISIONAL PROMOTION EXHIBIT P2 TRUE COPY OF THE ORDER DATED 19.08.2020 ISSUED BY THIS HON'BLE COURT IN WA NO.1110 OF 2020 EXHIBIT P3 TRUE COPY OF THE ORDER DATED 27.08.2020 BY THE 2ND RESPONDENT GRANTING PROVISIONAL PROMOTION _**WP(C).21293/20 & 11449/21**_ 15 ## **APPENDIX OF WP(C) 11449/2021** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE RELEVANT PORTION OF BO NO.DIV-8297/68 DATED 7.8.1969 ISSUED BY THE KSEB. - Exhibit P2 TRUE COPY OF THE NOTE FURNISHED TO THE CHIEF ENGINEER (HRM), KSEB, TVM DATED 17.12.2009. - Exhibit P3 TRUE COPY OF THE MINUTES OF THE MEETING HELD IN THE CHAMBER OF 2ND RESPONDENT ON 23.11.2010. Exhibit P4 TRUE COPY OF THE MINUTES OF THE MEETING HELD IN THE MINUTES OF MEETING OF THE BOARD ON 21.6.2014. Exhibit P5 TRUE COPY OF THE JUDGMENT DATED 2.7.2014 IN WPC NO.30511 OF 2012 RENDERED BY THIS HON'BLE COURT. Exhibit P6 TRUE COPY OF THE ORDER DATED 16.9.2014 ISSUED BY THE KSEB.