IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 17615 of 2007(V)
1. S.JAYAKUMAR, OVERSEER (ELECTRICAL),
... Petitioner
2. CLIFFEN SIMON, OVERSEER (ELECTRICAL),
3. L.SURESHKUMAR, OVERSEER (ELECTRICAL),
Vs
1. THE KERALA STATE ELECTRICITY BOARD,
... Respondent
2. THE CHIEF ENGINEER (HRM),
3. SATHEESHKUMAR.V., S/O.VELUKUTTY.K.,
4. S.RADHAKRISHNAN, S/O.SUBRAMONIAN POTTY,
5. J.FRANKLIN JOSE, S/O.JUSUS,
6. T.V.HARIKUMAR, S/O.THANKAPPAPANICKER,
7. P.SUBHASHIDHAN, SUB ENGINEER,
8. N.P.ULLASKUMAR, SUB ENGINEER,
9. K.K.HARIHARAN, SUB ENGINEER,
10. R.AJITHKUMAR, SUB ENGINEER,
For Petitioner :SRI.M.AYYOOBUKHAN
For Respondent :SRI.K.S.ANIL, SC, KSEB
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :03/04/2009
O R D E R
T.R. Ramachandran Nair, J.
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W.P.(C) No. 17615 of 2007,
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Dated this the 3rd day of April, 2009.
JUDGMENT
The petitioners are aggrieved by the denial of promotion to the post of
Sub Engineers in the Kerala State Electricity Board. They are working in
the cadre of Overseer (Electrical). They were initially appointed as
Mazdoor (Electricity Worker) and joined duty on 17.4.1995, 20.4.1995 and
19.4.1995 respectively. They were later promoted as Lineman Grade II in
the month of March 1999.
2. The second respondent as per Circular dated 9.9.1999 invited
applications for appointment to the post of Overseer (Electrical). The post
of Overseer (Electrical) was open to any employee having a pay scale lesser
than that of the Overseer, subject to having the qualification either in ITI
Electrician, Wireman, Electronics.
3. Accordingly, the petitioners applied for the post of Overseer
(Electrical). The matter was kept pending for a long time without any
further action on the part of the respondents. This resulted in filing of
O.P.No.21470/2000 by the first petitioner along with 18 other employees.
This was disposed of by Ext.P2 judgment directing the second respondent to
consider the petitioners for appointment to the post of Overseer (Electrical)
with reference to the date of occurrence of vacancies.
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4. Two Meter Readers filed Writ Appeal No.536/2002 which was
disposed of by Ext.P3 judgment directing the Board to consider all eligible
and qualified persons at the time of occurrence of vacancies. Accordingly,
they were promoted as Overseers (Electrical) with retrospective effect from
15.11.1999.
5. In the gradation list of Overseer (Electrical) as on 1.1.2004 the
petitioners have been assigned rank Nos.4232, 4198 and 4234 respectively.
The next promotion is to the post of Sub Engineer (Electrical) and the post
of Overseer is a feeder category. Ext.P6 is the copy of the settlement dated
11.8.2000 executed between the Board and the Labour unions. Under the
same, it was decided that the post of Meter Reader shall be considered as
feeder category for promotion to the post of Sub Engineer (Electrical) and
that all existing qualified Overseer (Electrical) as on the date of settlement
will be promoted to the post of Sub Engineer (Electrical) and thereafter the
qualified Meter Readers could be considered for promotion to the post of
Sub Engineer (Electrical). It is submitted that violative of the above clause,
the Board took steps to promote others and accordingly, voicing their
concern in the matter, the petitioners submitted Exts.P7 to P9
representations. Thereafter, the Board by Ext.P10 order, promoted various
persons numbering 259 and many of them are juniors to the petitioners
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including the party respondents herein. The petitioners approached this
court by filing writ petition No.33753/2006 which was disposed of directing
the Board to consider the representations. But the same were rejected as
per Ext.P12 without affording any opportunity to the petitioners to represent
their case. The petitioners are also aggrieved by Ext.P22 order dated
3.2.2009 whereby 424 Meter Readers having three years experience, have
been ordered to be accommodated in the post of Sub Engineer (Electrical).
6. Learned counsel for the petitioners relied upon clause 8 of Ext.P6
settlement which is in the following terms:
“8. The post of Meter Readers shall be treated as the feeder category
for promotion to the post of Sub Engineer (Ele.) against the 60%
quota and the post of Overseer (Ele.) shall cease to be the feeder
category to the post of Sub Engineer (Ele.) from the date of this
settlement. All the existing qualified Overseers (Ele.) as on the date
of the settlement will be promoted to the post of Sub Engineer (Ele.)
and thereafter the qualified Meter Readers will be considered for
promotion to the post of Sub Engineer (Ele.). 40% of the existing
places of the Overseer (Ele.) will be shifted to Meter Reader and 40$
of the vacancies in the category of Meter Reader will be reserved for
qualified in-service candidates. 25% of the Meter Reader post will
be filled up by promoting qualified in-service candidates of and
below the pay scale of Meter Reader. The method of appointment of
Meter Reader will be modified as 60 : 40 between direct recruitment
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and promotion from qualified in-service candidates, with the
concurrence of the Kerala Public Service Commission. Vacancies
arising hereafter in the post of Overseer (Ele.) will be filled up in the
following manner:
i) 90% by promotion from the post of Lineman Gr.I based on
seniority.
ii) 7% by promotion from persons with ITI (non-electrical) and Meter
Readers who are not eligible for promotion for the post of Sub
Engineer (Ele.) according to seniority.
iii) 3% by promotion from persons with a pass in 8th standard and 5
years field experience according to seniority.
It is submitted that all the existing qualified Overseers (Electrical) with
reference to the date of settlement will have to be promoted to the post of
Sub Engineers (Electrical). But in Ext.P12, while rejecting the
representations, it is stated that only persons with five years experience as
Overseer (Electrical) alone are entitled for promotion. It is pointed out that
the juniors were granted promotion as they had a lien in the cadre of Meter
Readers. As per clause 8 of Article VII B of the Long Term Settlement
2000, the feeder category for promotion to the cadre of Sub Engineer
(Electrical) against 60% quota is Meter Reader and not Overseer
(Electrical).
7. The first respondent, in the detailed counter affidavit filed, has
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justified the action taken by them. While referring to the contentions raised
by the petitioners in respect of the settlement, it is pointed out that going by
the settlement, the post of Meter Reader shall be the feeder category for
promotion to the post of Sub Engineer (Electrical) under 60% quota and the
post of Overseer (Electrical) shall cease to be the feeder category to the post
of Sub Engineer (Electrical) from the date of settlement, viz. 11.8.2000.
Prior to the above settlement, the persons working as Overseer (Electrical)
had to satisfy the educational qualifications, the certificate in the particular
field and five years of experience in the cadre of Overseer (Electrical).
8. It is further pointed out that when the Long Term Settlement 2000
was implemented, it was found that a few qualified Meter Readers who got
promotion to the level of Overseer (Electrical) and could not complete five
years in the cadre of Overseer (Electrical) as on the date of Long Term
Settlement, got entrapped in such a way that their total promotion prospects
to the level of Sub Engineer (Electrical) and above are blocked. Many of
the Meter Readers who were subsequently promoted as Overseers could not
be considered for promotion to the post of Sub Engineer (Electrical) as per
the provisions of the Long Term Settlement 2000 since they had not
completed five years of service as overseers in the Board as on the date of
settlement. Other anomalies are also pointed out in the counter affidavit. It
WPC 17615/07 6
is further averred that all the trade unions who are parties to the settlement
and other employees requested to reconsider the issue and accordingly,
Ext.R1(a) order was passed by the Board. Therein, benefit has been
granted to Overseers (Electrical) who were promoted and posted as
Overseer (Electrical) from the grade of Meter Readers with effect from a
date prior to the date of the Long Term Settlement, 2000 against 25%
quota for Meter Readers, to the cadre of Sub Engineer (Electrical) subject to
their seniority, qualification and eligibility as and when they complete five
years of service in the grade of Overseers. As the petitioners are not
appointed as Overseer (Electrical) from the cadre of Meter Reader, the
benefit of the above orders are not extended to them. Thus, the promotion
of juniors have been supported in the counter affidavit.
9. A reading of Ext.R1(a) gives the background of the dispute.
Clearly, the bar of promotion/appointment of Overseers (Electrical) as Sub
Engineers because of the particular clauses contained in the Long Term
Settlement was the bone of contention between the various sections. A
category of employees apart from the petitioners, were got entrapped
without any avenues of promotion. On the basis of the complaints in the
matter, as per Ext.R1(a) the Board reviewed the same. The case of Meter
Readers who were promoted as Overseers alone was considered in
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Ext.R1(a). Many of them did not complete five years also. It is stated in the
internal page 2 of Ext.R1(a) that these incumbents who could not complete
five years on the date of settlement were denied their promotion avenues by
implementing the impugned clause of the settlement. The issue relating to
the promotion prospects of these Overseers who got entrapped in the
process of settlement dated 11.8.2000 needs special treatment.
Accordingly, the Board accorded sanction to post Overseers from the
grade of Meter Readers against 25% quota for Meter Readers.
10. In fact, even at that point of time when Ext.R1(a) was issued, the
claim of promotion raised by the persons like the petitioners who belong to
another category and are denied any further avenues of promotion, has not
been considered by the Board. The petitioners are also persons who are not
able to get promotion in the light of rigour clause 8 of Article VII-B of
Ext.P6. Even though learned counsel for the petitioners submitted that all
the existing qualified Meter Readers as on the date of settlement will be
eligible to be promoted, in the light of the word “qualified” therein, the
qualification prescribed by the relevant orders prior to the adoption of
Ext.P6 will have to be gone into. It is because of this stipulation that
persons like the petitioners are not getting promotion. Thus, these persons
are also entrapped as such. Strangely, this aspect was not considered while
WPC 17615/07 8
issuing an order like Ext.R1(a). The very reasoning adopted in Ext.R1(a) is
that the incumbents therein could not complete five years of service as
Overseers from the date of settlement and were denied their promotional
avenues by implementing the impugned clause in the settlement. The
situation herein is identical.
11. In that view of the matter, the Board should reconsider the issue.
It is well settled that any person who enters service will be having a
legitimate and reasonable expectation to obtain promotion and the denial of
promotion avenues to him will be violative of Articles 14 and 16 of the
Constitution of India. Stagnation in service is deprecated. Why the case of
others who are yet to complete five years of service as on the date of Ext.P6
as Overseers did not find a place in the settlement is rather strange. But the
said anomaly cannot be allowed to remain further and the matter will have
to be gone into in detail and appropriate promotional avenues should be
provided to them.
12. In this case, it is clear that persons lower in the gradation list than
that of the petitioners have gained promotion to the higher post. Plainly,
this is violative of Articles 14 and 16 of the Constitution of India. Even
though it is now sought to be justified by contending that they are being
promoted by a different mode, that cannot defeat the rights of the
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petitioners, since all of them have found a place in the gradation list of
Overseer (Electrical). By conferring such benefits of promotion to a
particular class including juniors will violate Articles 14 and 16 of the
Constitution of India.
13. Therefore, the petitioners are entitled to succeed in this writ
petition. Ext.P12 is quashed. Appropriate action will be taken to provide a
channel of promotion to persons like the petitioners. Fresh orders will be
passed within a period of four months from the date of receipt of a copy of
this judgment in accordance with the findings contained herein.
The writ petition is allowed as above. No costs.
(T.R. Ramachandran Nair, Judge.)
kav/