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.
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W.P(C) Nos. 19924 & 29579 OF 2007
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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
2
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
3
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.
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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
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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
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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
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