High Court Kerala High Court

N.K. Soman vs Kerala State Electricity Board on 1 February, 2008

Kerala High Court
N.K. Soman vs Kerala State Electricity Board on 1 February, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) No. 19924 of 2007(V)


1. N.K. SOMAN,
                      ...  Petitioner

                        Vs



1. KERALA STATE ELECTRICITY BOARD,
                       ...       Respondent

2. THE CHAIRMAN,

3. THE CHIEF ENGINEER,

4. THE INSPECTOR GENERAL OF POLICE

5. SHRI T.M. MANOHARAN,

                For Petitioner  :SRI.K.JAJU BABU

                For Respondent  :SRI.N.N.SUGUNAPALAN(SR.)SC,KSEB

The Hon'ble MR. Justice V.GIRI

 Dated :01/02/2008

 O R D E R
                                     V. GIRI, J.

                            -------------------------------

                  W.P(C) Nos. 19924 & 29579 OF 2007

                          -----------------------------------

                 Dated this the 1st day of February, 2008


                                   JUDGMENT

One of the issues which arises for consideration in these two

cases relates to the right of the incumbent to be considered for

provisional promotion to a selection post governed by Rule 31 (a)

(i) of Part II KS & SSR. Therefore, they have been heard and

disposed of by this common judgment.

2. The petitioner in WP(C) No.19924 of 2007 is an Assistant

Executive Engineer(Electrical) who was included in Ext.P1

seniority list for promotion to the post of Executive Engineer.

Apparently, by Ext.P4 order, 142 persons who were juniors to him

were promoted as Executive Engineers, but the petitioner was

denied such promotion. Representations submitted by him in this

regard were rejected under Ext.P7 order. The reason for denial of

his promotion is that disciplinary proceedings, as evidenced by

Ext.P10, have not been finalised.

3. The petitioner in WP(C) No.29579 of 2007 is an Executive

Engineer(Civil) who aspires for promotion to the post of Deputy

WPC Nos.19924 & 29579 of 2007

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Chief Engineer. Reference is made to Ext.P2 seniority list which

shows that he is senior to the 3rd respondent. But, notwithstanding

that, the petitioner’s juniors were promoted under Ext.P1. Ext.P3

representation submitted by the petitioner was rejected under

Ext.P5 order, especially on the premise that the memo of charges

issued in the year 2004 is yet to be finalised. The petitioner

makes reference to Ext.P8 which shows that one Mr.Sathyadas,

who is also facing disciplinary proceedings on charges identical to

Ext.P6 was promoted as Chief Engineer under Ext.P8 order

notwithstanding the pendency of disciplinary proceedings against

him.

4. It is contended by the petitioners that promotions hitherto

effected in the Board and referred to in the writ petition are

provisional promotions. Pendency of disciplinary proceedings

should not stand in the way of petitioners being considered in this

regard. Reference is made to the proviso to Rule 31 (a) (i) of Part

II of the KS & SSR which is applicable to the KSEB. Petitioners’

seniority should not have been overlooked, in the matter of

WPC Nos.19924 & 29579 of 2007

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provisional promotions impugned in the writ petition. The counter

affidavit would show that the Board has taken shelter under Rule

28(b)(i)(7), Note (1) of Part II KS &SSR. It is submitted that the

assessment of the suitability of an officer for promotion by the

Departmental Promotion Committee(DPC) is obviously

contemplated for a regular promotion. What is sought for in the

instant case is provisional promotion. DPC has not been

convened either for the post of Executive Engineer or to the post

of Deputy Chief Engineer and consequently there is no bar against

provisional promotions being effected. Ext.P4 order in WP(C)

19924 of 2007 and Ext.P1 order in WP(C) 29579 of 2007 will show

that the promotions effected were provisional promotions, in terms

of Rule 31 (a) (i) of Part II KS & SSR . If that be so, the act of the

Board overlooking the seniority of the petitioner is illegal.

5. In so far as WP(C) 19924 of 2007 is concerned, it is

pointed out that Ext.P15 is an order of punishment by the

disciplinary authority barring one increment with cumulative effect.

It has been challenged in Ext.P16 appeal before them. At any

WPC Nos.19924 & 29579 of 2007

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rate, Ext.P15 should not stand in the way of the petitioner being

considered for provisional promotion. Firstly for the reason that

Ext.P15 has been issued about one year after Ext.P4 order of

promotion promoting 142 juniors of the petitioner and also for the

reason that on expiry of one year from the date of Ext.P1,

punishment should be deemed to have been suffered. At any

rate, the assessment of suitability in terms of Rule 28(b)(7) is not

contemplated in the case of promotion.

6. In so far as the WP(C) 29579 of 2007 is concerned, it is

pointed out that double standards have been employed by the

Board in as much as that, notwithstanding the pendency of

disciplinary proceedings, another person who is facing charges

identical to that contained in Ext.P6 has been provisionally

promoted as Chief Engineer as evidenced by Ext.P8.

7. I heard the learned counsel for the petitioners Sri.Jaju

Babu and Ramesh Babu, learned Senior counsel

Sri.N.N.Sugunapalan and learned Standing Counsel for the

Electricity Board, Sri.K.S. Anil.

WPC Nos.19924 & 29579 of 2007

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8. The petitioners pray for a direction to respondents to

promote them to the next category on the premise that there is no

other factor which would stand in the way of them of being

considered for the next higher post. Admittedly, the petitioners

have to be promoted to a selection post. With respect to regular

promotion, as rightly submitted by Mr.Sugunapalan, the

entitlement will be governed by Rule 28(b)(i) of Part II of KS

&SSR. This involves assessment of suitability. But, that can only

be done by the DPC. Proceedings taken by the DPC is again not

final as it is open to the person who is either not included in the list

or who has been superseded to again approach the DPC for

revision of the select list. While a concerned incumbent may be

facing disciplinary action as per Note (1) to Rule 28(7), he should

still be considered by the DPC, but, by adopting the sealed cover

procedure. In this way, his claim for promotion with reference to

the vacancies which have arisen and when he was otherwise

eligible for promotion will be considered after completion of

disciplinary proceedings.

WPC Nos.19924 & 29579 of 2007

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9. Mr.Sugunapalan is also right in contending that there

cannot be any vested right on the part of the petitioners to be

provisionally promoted, as such provisional promotion should left

to the appointing authority’s right to be considered for regular

promotion. But having said so, I take note of the fact that the

promotions effected in both cases are provisional promotions.

admittedly, governed by Rule 31(a) (i) of Part II of KS & SSR. If

that be so, there must be some reason why the seniority of the

petitioners is over looked, by provisionally promoting their juniors.

I also take note of the averments in the writ petition, which do not

seem to have been sufficiently controverted, that other persons

who are also facing disciplinary proceedings have been

provisionally promoted. Strictly going by Rule 31(a) (i), Board is

entitled to do so. But if that be so, why should different yard sticks

be adopted in the petitioners’ case.

10. I further take note of the fact that in so far as WP(C)

27579 of 2007 is concerned, another person who faces

disciplinary action, on charges identical to those contained in

WPC Nos.19924 & 29579 of 2007

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Ext.P6, has apparently been considered suitable for promotion as

Chief Engineer where as the petitioner has not been considered

for promotion as Deputy Chief Engineer. In an ideal situation, the

appointing authority should convene the DPC as and when

vacancy arises. But, it is hard to ignore the fact that the

promotions effected hitherto forming the subject matter of the two

writ petitions are provisional promotions. In the result, the Writ

Petitions are disposed of in the following terms:

WP(C) No.19924 of 2007 :

i. The 1st respondent is directed to take steps to convene the

DPC for the post of Executive Engineer(Electrical), as early as

possible, at any rate, within a period of three months from the date

of receipt of a copy of this judgment. DPC so convened shall

consider the case of the petitioner in terms of Rule 28(b)(i) of Part

II of KS &SSR.

ii. If the 1st respondent is unable to convene the DPC before

the aforementioned time, the petitioner shall be provisionally

promoted to the post of Executive Engineer by considering him on

WPC Nos.19924 & 29579 of 2007

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par with his juniors, promoted under Ext.P4.

iii. The disciplinary proceedings evidenced by Ext.P10 shall

be finalised within three months of the date of receipt of a copy of

this judgment.

iv. As and when the DPC is convened for the post of

Executive Engineer(Electrical), petitioner shall also be heard in

accordance with law and obviously the provisional promotion of

the petitioner and all other persons, shall be subject to the select

list to be published by the DPC.

v. In the facts of the case, I deem it unnecessary to consider

the correctness of the allegations of malafidies levelled by the

petitioner. I direct that the said allegations be eschewed from

considerations.

WP(C) No. 29579 of 2007 :

i. The 1st respondent shall convene the DPC to the post of

Deputy Chief Engineer(Civil) within a period of three months of the

date of receipt of a copy of this judgment.

ii. If the 1st respondent is unable to do so or fails to do so,

WPC Nos.19924 & 29579 of 2007

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petitioner shall be provisionally promoted as Deputy Chief

Engineer(Civil), on par with the 3rd respondent.

iii. As and when the DPC is convened, the petitioner shall

be considered for regular promotion along with other eligible

persons and it is needless to mention that provisional promotions

will be subject to review, depending upon the select list to be

published on the recommendations of the DPC.

The Writ Petitions are disposed of as above.

V.GIRI, JUDGE

ttb

WPC Nos.19924 & 29579 of 2007

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