IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 18678 of 2004(W)
1. P.VENU, S/O. S.PARAMU,
... Petitioner
Vs
1. STATE OF KERALA, REP. BY THE SECRETARY,
... Respondent
2. THE KERALA STATE HOUSING REP. BY
3. THE CHAIRMAN, KERALA STATE HOUSING BOARD
4. P.S.SASANKAN, ACCOUNTS OFFICER,
5. K.SUSEELA, ACCOUNTS OFFICER,
For Petitioner :SRI.T.A.SHAJI
For Respondent :SRI.PIRAPPANCODE V.S.SUDHIR
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :21/07/2008
O R D E R
P.N.RAVINDRAN, J.
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W.P.(C)No.18678/2004
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Dated this the 21st day of July 2008
JUDGMENT
The petitioner entered service as Lower Division Clerk in
the Kerala State Housing Board on 22.4.1987. He was
promoted as Upper Division Clerk on 7.6.1989 and as Junior
Superintendent on 1.7.1999. Respondents 4 and 5 are
admittedly seniors to the petitioner in service. When the
petitioner and respondents 4 and 5 entered service, the
conditions of service of employees of the Kerala State Housing
Board were governed by the Kerala State Housing Board
Establishment Regulations, 1977. Before the petitioner and
respondents 4 and 5 are promoted as Junior Superintendents,
the 1977 Regulations were superseded by the Kerala State
Housing Board Establishment (Qualification and Method of
Appointment) Regulations, 1995, a copy of which is Ext.P2. The
validity of the said Regulation was challenged in this Court in
O.P.No.308 of 1996. By an interim order passed on
29.2.1996 in O.P.No.308 of 1996, the operation of the 1995
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Regulations was stayed by this Court. Later, another interim
order was passed on 9.4.1996 directing that promotions may
be effected temporarily and subject to the result of the Original
Petition. O.P.No.308 of 1996 was disposed of on 12.1.2000, in
view of a supervening event, namely, the framing of another
set of Regulations styled as the 1998 Regulations. The 1998
Regulations was not brought into force. However, in view of the
said development, O.P.No.308 of 1996 was dismissed as
infructuous by Ext.P5 judgment delivered on 12.1.2000. Long
thereafter, the Kerala State Housing Board Establishment
(Qualifications and Method of Appointment) Regulations 2006
was framed and brought into force on 25.11.2006.
2. It was while O.P.No.308 of 1996 was pending that the
petitioner and respondents 4 and 5 were promoted as Junior
Superintendents. In Ext.P2, the 1995 Regulations, which came
into force on 6.10.1995 a pass in the Paper III of Account Test
Lower conducted by the Kerala Public Service Commission for
the Ministerial and Executive Staff of Kerala State Electricity
Board was prescribed as one of the qualifications for promotion
to the post of Senior Superintendent/Accounts Officer. The
petitioner admittedly passed the said test in the examination
W.P.(c)18678/2004 -3-
held on 29.6.1996. Respondents 4 and 5 did not possess the
said qualification. By virtue of Rule 13A (1)(b) of Part II of the
KS&SSR, they were entitled for exemption from passing the
said examination for a period of two years. It is not in dispute
that the fifth respondent, who is senior to the petitioner and
the fourth respondent, was promoted as Senior Superintendent
on 7.11.1995 and the fourth respondent was promoted as
Senior Superintendent on 8.3.2000. The petitioner has not
challenged their promotion as Senior Superintendents till date.
Even in this writ petition their promotion as Senior
Superintendents is not under challenge. The main grievance
put forward by the petitioner in Ext.P6 representation dated
30.4.2002 was that a vacancy of Senior Superintendent is
arising on 30.4.2002 and that he should be promoted to that
post. His contention was that promotions to the category of
Senior Superintendents/Accounts Officers effected after
1.7.2000 should be reviewed and he may be given retrospective
promotion as Senior Superintendent/Accounts Officer with effect
from the date on which he became entitled to be promoted to
the said post. When Ext.P6 was submitted, the 1995
Regulations were in force. By Ext.P12 order passed on
6.12.2003, the said representation was rejected. Ext.P12 reads
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as follows:
“Referring to the above, I am to inform you that
your request for giving promotion in the post of
A.O.S.S. as per the 1995 Establishment Regulation
cannot be considered on the following reasons.
i) The 1995 Establishment Regulation came into
force on 9.10.1995. But its operation was stayed by
the Hon’ble High Court of Kerala on 29.2.1996 in
C.M.P.No.460/1996 in O.P.308/1996 filed by the
Housing Board Employees Federation. On perusing
the petition and affidavit stating to give effect to
the promotion postings on the basis of
rules/regulations which prevailed prior to 1995
Regulations pending disposal of the O.P., the
Hon’ble High Court has ordered in another
C.M.P.No.9022/1996 in O.P.No. 308/1996 on
9.4.1996 to effect promotions temporarily subject
to the final disposal of the O.P. It was under these
circumstances, promotions were effected on the
basis of the seniority and without insisting for the
new test introduced in the 1995 Establishment
Regulation.
ii) The Establishment Regulation 1998 is under
the consideration of the Government and has not
yet been finalised.
iii) Moreover, based on the staff pattern, 4 posts
of A.S. and 9 posts of A.O.S.S. were created and
operated w.e.f. 1.7.99 which includes your
promotion in the feeder category of A.O.S.S. i.e.
Junior Superintendent as the 32nd promotee.
Government had declined to give sanction for the
excess posts created by the Board and directed to
effect reversion. The Board at its meeting held on
27.4.2002 resolved not to revert those present
incumbents and decided to adjust the posts from
the future vacancies which would arise through
retirement/death vacancies. Right now, 7 posts of
A.O./S.S. are in excess. It was under these
circumstances, your probation in the post of Junior
Superintendent was not declared. At this juncture,
no fresh promotions can be given to the post ofW.P.(c)18678/2004 -5-
A.O./SS as there is no existing vacancy.
iv) There are three Junior Superintendents who
are seniors to you have acquired the prescribed
Departmental Test Qualification prescribed in the
1995 Regulation.”
3. The 2006 Regulations evidenced by Ext.P17 came into
force only on 25.11.2006. Though by an interim order passed on
29.2.1996 in O.P.No.308 of 1996, the operation of the 1995
Regulations was stayed by this Court, the order of stay ceased to be in
force when the O.P.No.308 of 1996 was dismissed on 12.1.2000.
Therefore, promotions effected during the period from 12.1.2000 to
25.11.2006 will have to be in accordance with the 1995 Regulations
which had been notified and brought into force on 6.10.1995. As
noticed earlier, in the 1995 Regulations, a pass in the Paper III of
Account Test Lower conducted by the Kerala Public Service
Commission for the Ministerial and Executive Staff of Kerala State
Electricity Board was one of the qualifications prescribed for promotion
to the post of Senior Superintendent/Accounts Officer. In the 2006
Regulations (Ext.P17), which came into force on 25.11.2006, a pass in
the said test is not insisted upon. Therefore, the promotions to the
post of Senior Superintendent/Accounts Officer during the period from
12.1.2000 and 25.11.2006 can only be under the 1995 Regulations
and only those employees of the Housing Board who possessed the
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aforesaid qualification were entitled to be promoted as Senior
Superintendent/Accounts Officer. Promotions made to the post of
Senior Superintendent/Account Officer during the period from
12.1.2000 to 25.11.2006 will therefore have to be reviewed with
reference to the aforesaid regulations and also the date on which the
vacancies in the said posts arose. When Ext.P12 was issued, the 1995
Regulations were in force. This aspect of the matter has not been
adverted to by the Kerala State Housing Board when it issued Ext.P12
order. The reasons stated in Ext.P12 to decline the petitioner’s request
in Ext.P6 are not in my opinion tenable. The Kerala State Housing
Board has not considered the claim of the petitioner with reference to
the provisions of the 1995 Regulations, which occupied the field till
25.11.2006. I, therefore, set aside Ext.P12 and direct the respondents
to consider the grievance set out by the petitioner in Ext.P6 and other
representations referred to in Ext.P12, with reference to the provisions
governing the service conditions of employees as contained in the
1995 Regulations (Ext.P2). The petitioner as well as the persons who
are likely to be affected by the orders, if any, to be passed on his
representation shall also be afforded an opportunity to put forward
their claims. If the petitioner is found eligible for promotion as Senior
Superintendent/Accounts Officer as claimed by him with effect from
2.7.2000 or from any subsequent date, he shall be given promotion
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with effect from that date, with all attendant benefits including
emoluments. Orders in this regard shall be passed within three
months from the date of receipt of a copy of this judgment.
The writ petition is allowed as above. No costs.
P.N.RAVINDRAN, JUDGE
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