IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 17TH SEPTEMBER 2009 / 26TH BHADRA 1931 WP(C).No. 562 of 2009(P) ----------------------------------- PETITIONERS: --------------------- 1. ULLAS N.P. METER READER, ELECTRICAL SECTION, K.S.E.B, VAZHOOR, KOTTAYAM DISTRICT. 2. SIBY LUKOSE METER READER, ELECTRICAL SECTION, KSEB, PONKUNNAM , KOTTAYAM DISTRICT, 3. JOHN K.M., METER READER, ELECTRICAL SECTION, KSEB, PALLICKATHODU, KOTTAYAM DISTRICT. 4. BIJUMON.P.P, METER READER, ELECTRICAL SECTION -1 KSEB, KOTHAMANGALAM, ERNAKULAM DISTRICT. BY ADVS. MR.WILSON URMESE, MR.M.C.ANTONY. RESPONDENTS: ------------------------ 1. KERALA STATE ELECTRICITY BOARD, REP. BY ITS SECRETARY, VAIDHUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM-4 2. THE CHIEF ENGINEER (H.R.M), VAIDHUTHI BHAVAN,PATTOM, THIRUVANANTHAPURAM-4 *ADDL RESPONDENTS 3 TO 7 IMPLEADED: 3. JAMES THOMAS, METER READER, ELECTRICAL SECTION, PALLAM, KOTTAYAM DISTRICT. 4. JAISON. S., METER READER, ELECTRICAL SECTION, KOTTAYAM CENTRAL, KOTTAYAM. 5. ANISHKUMAR A., METER READER, ELECTRICAL SECTION, PALLAM, KOTTAYAM DISTRICT. W.P.(C). NO.562/2009-F: 6. SLEEBA JOHN, METER READER, ELECTRICAL SECTION, KOTTAYAM EAST, KOTTAYAM. 7. SANTHOSH KUMAR C.C., METER EADER, ELECTRICAL SECTION, KIZHAKKAMBALAM, ERNAKULAM DISTRICT. *ADDL. RESPONDENTS 3 TO 7 ARE IMPLEADED AS PER ORDER DATED 19/02/2009 IN I.A. NO. 2343/09. R1 & R2 BY ADV. MR. ASOK M.CHERIYAN, SC, KSEB, ADDL. R3 TO R7 BY MR.K.RAMAKUMAR, SENIOR ADVOCATE, MR.T.RAMPRASAD UNNI. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/09/2009, ALONG WITH W.P.(C).NO.4485/2009 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. V.GIRI,J. ------------------------- W.P ( C) Nos.33021 of 2007, 17510, 32231, 33346, 34369 of 2008 and 562, 4485,4699 and 19027 of 2009 -------------------------- Dated this the 17th September,2009 J U D G M E N T To an extent, issues involved in these cases are common and therefore they have been heard together and are being disposed of by a common judgment. The main issue involves promotion to the post of Sub Engineer (Electrical) in the Kerala State Electricity Board. I will refer to the facts in WPC No.562 of 2009 in the first instance and where reference to individual facts are necessary, that shall be done at the appropriate stage. 2. Petitioners in WPC No.562 of 2009 are presently working as Meter Readers in the Kerala State Electricity Board. They were originally appointed as Electricity Workers during 1996. Thereafter they were promoted as Lineman Gr.II in the year 1999 and as Lineman Gr.I in the year 2001. Subsequently, they were promoted as Meter Readers in 2005. WPC No.562 of 2009 and conn. cases 2 3. Appointment to the post of Meter Reader is by direct recruitment and promotion in the ratio of 75:25. Appointment to the post of Sub Engineer (Electrical), which is the promotion post of Meter Reader, is by three separate streams. 60% of the vacancies are to be filled up by promotion from among the qualified Meter Readers, 30% by direct recruitment from the open market and 10% by direct recruitment from among the employees of the Electricity Board. 4. Major dispute in the instant case relates to the filling up of the 60% promotion vacancies in the post of Sub Engineer (Electrical). According to the petitioners, apart from the general qualification and technical qualification prescribed for the post of Sub Engineer, which is not the subject matter of controversy, further qualification prescribed for the post is five years service under the Electricity Board. Since the petitioners had commenced service in the Board in the year 1996, they contend that they have requisite experience of five years in the Board and therefore they are entitled to be promoted as Sub WPC No.562 of 2009 and conn. cases 3 Engineers. As per Ext.P3 Board order dated 23.1.1981, the following is prescribed as the qualification for the post. "Qualification General: SSLC or its equivalent. Technical: i). Certificate in Electrical Engineering obtained after passing an examination conducted by a competent authority after having undergoing a course of study of not less than 2 years from Technical School or a Technical Training Centre or an institution recognised for the purpose by Government and with not less than five years of service as Lineman/Second Grade Overseer (Ele.) under the Board. ii). Certificate obtained after having passed an examination conducted by the competent authority in the Trade of Lineman/wireman/Electrician after 18 months course in ITI and six months in plant training and with not less than five years of service as Lineman/Second Grade Overseer (Ele.CI). iii) MGTE/KGTE group certificate in Electrical Engineering covering from subjects viz. a. Electric Light & Power (Higher) b. Applied Mechanics (L) c. Heat Engines (L) WPC No.562 of 2009 and conn. cases 4 d. Machine drawing (L) and with not less than five years of service as Lineman/Second Grade Overseer (Ele.CI) under the Board." 5. Reference is made in this regard to the fact that pursuant to a Long Term Settlement entered into between the Board and the employees, the feeder category for promotion to the post of Sub Engineer (Electrical) against 60% quota was prescribed as Meter Reader. Earlier it was the post of Overseers (Electrical) that was treated as feeder category to the post of Sub Engineer (Electrical). The relevant portion of Ext.P4 reads as follows: "The post of Meter Reader 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 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 WPC No.562 of 2009 and conn. cases 5 appointment of Meter Reader will be modified as 60:40 between direct recruitment 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." 6. It is contended that going by Ext.P3, five years of service as Lineman/Second Grade Overseer (Electrical) under the Board is treated as a requisite experience for promotion to the post of Overseer (Electrical) Gr.I [which was subsequently re-designated as Sub Engineer (Electrical).] Since the petitioners have experience as Lineman that should be tacked on to the experience of Meter Readers and if that be so, they are eligible to be treated as adequately experienced. But on the premise WPC No.562 of 2009 and conn. cases 6 that there are no adequately experienced Meter Readers, eligible for promotion as Sub Engineers, the Board proceeded to issue Ext.P6 order according sanction to fill up 150 vacancies of Sub Engineers (Electrical) through Public Service Commission from the rank list which was then in force subject to the condition that all arising vacancies by retirement/ promotion shall be adjusted to be filled up against 60% quota till the entire quota is met. Ext.P6 has been challenged in the writ petition. Ext.P6 was followed by another decision taken by the Board, as evidenced by Ext.P7 in which giving up the proposal for filling up the existing vacancies from the list in question, the Board decided to engage Meter Readers who have completed three years of service in the Board as Sub Engineer (Electrical) Trainees and in doing so it was also decided that 75% of the existing vacancies to be filled up in such a provisional manner shall be from among Meter Readers who have been appointed through Public Service Commission and 25% from among Meter Readers who have been promoted to the post from lower categories. By an WPC No.562 of 2009 and conn. cases 7 amendment Ext.P7 has also been challenged by the petitioners. Petitioners in WPC No. 34369 of 2008 are similarly situated persons. They have adopted the same contentions. Petitioners in WPC No.32231 of 2008, 17510 of 2008, 33346 of 2008, 4699 of 2009 and WPC No.4485 of 2009 are all Meter Readers who are recruited directly through the Public Service Commission. There is an additional contention which is taken up in WPC No. 34369 of 2008, which I will refer to later. But the contentions taken up by the petitioners in the above mentioned cases, (who are referred to as direct recruits for the sake of convenience) is that the post of Lineman which is mentioned in Ext.P3 in WPC No.562 of 2009 namely in the annexure to the Board order dated 23.1.1981 is not the same as Lineman Gr.II or Gr.I as the case may be. It is the contention of the direct recruits that the post of Meter Reader was substituted as a Feeder Category for promotion to the post of Sub Engineer (Electrical) in the Long Term Settlement arrived at in the year 2000 (Ext.P4) and hereinafter referred to as 2000). That the 2000 WPC No.562 of 2009 and conn. cases 8 settlement providing for Meter Reader as a Feeder Category for promotion to the post of Sub Engineer (Electrical) against the 60% quota does not provide for any minimum experience to be acquired by a Meter Reader for promotion to the post of Sub Engineer (Electrical). It is further contended by them that in the gradation list for Meter Readers, in which Promotee Meter Readers and direct recruits are included, direct recruits are treated as senior to promotee Meter Readers and at any rate, since there is a gradation list for the feeder category, promotion to the post of Sub Engineer (Electrical) must be effected by operation of the said gradation list. 7. In the alternative, it is contended, if it is found that Meter Readers should also have the requisite five years experience for promotion to the post of Sub Engineer (Electrical) then the experience required is that of a Meter Reader and not that of a Lineman as such. 8. Petitioners in WPC No.33021 of 2009 are included in the rank list for appointment to the post of Sub Engineer in the 30% quota for direct recruitment from the WPC No.562 of 2009 and conn. cases 9 open market. They are awaiting appointment. In the meanwhile, in the wake of Boards observation that there are no adequately qualified Meter Readers for filling up the 60% promotion quota from among the Sub Engineers, Ext.P6 in W.PC No.562 of 2009 came to be issued. Petitioners in WPC No.33021 of 2007 have essentially sought for the implementation of the said order in this writ petition. 9. Heard learned counsel for the petitioners Mr.Wilson Urumese, Sri. M.Sajjad, Sri. V. Sajith Kumar, Sri. Titus Mani Vettom, Sri.Millu Dandapani, Sri.M.V Thamban and Sri.George Abraham and Sri. Asok M.Cherian, learned Senior Counsel for the Electricity Board and Sri.Kaleeswaran Raj for some of the contesting respondents. 10. The question to be considered first is whether any minimum experience is required, as a Meter Reader for promotion to the post of Sub Engineer (Electrical). The contention that no minimum experience is required for Meter Readers is rested on the fact that method of WPC No.562 of 2009 and conn. cases 10 appointment to the post of Overseer(Electrical) Gr.I as the post then stood (which were later re-designated as Sub Engineer(Electrical) provided that the promotee should have not less than 5 years of service as Lineman/Second Grade Overseer (Electrical) under the Board. In 2000 settlement, the post of Meter Reader was decided to be treated as a feeder category for promotion to the post of Sub Engineer (Electrical). It is contended that apart from stipulating that the post of Meter Reader shall be treated as feeder category, Settlement also provided for the ratio to be maintained in the matter of recruitment to the post of Sub Engineer (Electrical). 60% of the vacancies are to be filled up by promotion and the remaining 40% by direct recruitment. The contention seems to be that when the feeder category for promotion to the post of Sub Engineer (Electrical) was changed in its entirety, then the requisite experience which was prescribed in relation to the earlier feeder category cannot be considered as the prescription for the new feeder category which is prescribed for the post. Thus, experience of 5 years as Overseer (Electrical) WPC No.562 of 2009 and conn. cases 11 Gr.II/ Lineman prescribed in Ext.P3 order dated 23.1.1981 cannot be adopted per se in the case of Meter Readers, it is contended. 11. I am unable to accept this submission. What took place in the Long Term Settlement of 2000, is the substitution of the feeder category for the post of Sub Engineer (Electrical). Earlier, the post of Overseer (Electrical) was the feeder category and that was substituted by the post of Meter Reader. But neither the qualification nor the experience required in the feeder category, for the post of Sub Engineer (Electrical) came to be tinkered with or changed in the Long Term Settlement. It is not possible to hold that clause 8 in the Long Term Settlement should be treated as completely effacing amending the prescriptions regarding the method of appointment and qualifications general and technical and otherwise as was prescribed for the post in question in Ext.P3 order of 1981. What was amended was the method of appointment and in doing so, feeder category came to be substituted. Prescriptions in Ext.P3 as regards the WPC No.562 of 2009 and conn. cases 12 qualifications both general and technical remained the same. There is nothing in the Long Term Settlement suggesting that the Board or the representatives of the workmen intended to bring about a complete amendment of Ext.P3 by reason of Ext.P4. 12. There is another reason why the contention raised in this regard by the direct recruits cannot be accepted. According to to them, all that took place in the 2000 Settlement was the substitution of the feeder category "namely the post of Overseer (Electrical) by the post of Meter Reader" . There is no dispute that experience in the post which is mentioned in Ext.P3 would have been required had the substitution of the feeder category not taken place vide Ext.P4. To accept the contention now raised by the direct recruits that no experience whatsoever in the category of Meter Reader is required for any person for promotion to the post of Sub Engineer (Electrical) would lead to highly incongruous situation since a person whether appointed or promoted to the post of Meter Reader would then become eligible for being considered for WPC No.562 of 2009 and conn. cases 13 promotion to the post of Sub Engineer (Electrical) subject to the declaration of probation. Such an extreme view cannot be accepted and at any rate no such inference can be drawn on a reading of Exts.P3 and P4. 13. Once it is accepted that subject to treat Meter Readers as feeder category, the other prescriptions contained in Ext.P3 providing for promotion to the post of Sub Engineer (Electrical) remained intact, then the further question is whether the experience of 5 years mentioned in Ext.P3 should be the experience of Meter Reader or is it only 5 years service in the Board as contended by the Promotee Meter Readers. It may be mentioned herein that the direct recruits Meter Readers in this regard would support the case of Electricity Board that minimum 5 years experience is required for promotion to the post of Sub Engineer (Electrical) and it must be the experience of Meter Reader and not merely service in any category in the Electricity Board as such. 14. Petitioners in WPC No.562 of 2009 contend that 5 years of service as Lineman/Second Grade Overseer WPC No.562 of 2009 and conn. cases 14 (Electrical) is alone required in Ext.P3 that since they admittedly were Linemen both Gr.I and Gr.II, their experience should be treated as sufficient. 15. The Orders of the Board commencing from 1967 which originally laid down the qualification and method of appointment to the post of First Grade Overseer (Electrical) may be referred to in this regard. By Board order dated 28.12.1967, the qualification and method of appointment for the above mentioned post was laid down and this included five years of service under the Board. By Board order No.EC.IV 3600/67 dated 31.12.1970, the following modification was brought in. "The Board in consultation with the Public Service Commission hereby orders that the existing condition of "5 years experience as II Grade Overseer (Electrical)" prescribed in Board Order No.EB.IV-3600/67 dated 28.5.1970 for promotion and direct recruitment of Board employees possessing S.S.L.C. or its equivalent and M.G.T.E/K.G.T.E certificate in Electric Light and Power (Higher) to the post of I Grade Oversee (Ele) will be modified and fixed as "5 years of service under the Board." 16. The effect of the same was that whereas earlier five years experience as Second Grade Overseer WPC No.562 of 2009 and conn. cases 15 (Electrical) was required, by Board order dated 31.12.1970, it was fixed as five years of service under the Board. Thereafter by Board order dated 16.8.1973, the requirement of five years of service as Lineman/Second Grade Overseer was reinstated and this was continued in Ext.P3 order dated 23.1.1981. By reason of the Long Term Settlement of 1986, it was provided that the workmen in the category of Lineman/Second Grade Overseer will be integrated with effect from 1.8.1986 and the integrated category will be re-designated as Overseer (Electrical). It was further provided that Lineman in the scale of pay of Rs..675-1240 (revised)will be taken together as a block and placed below the junior-most Second Grade Overseer (Electrical). It was also provided that promotion to the category of Overseer (Electrical) will be from the category of Lineman Assistant in the ratio of 60:40. between qualified and unqualified hands. 17. It was further provided that First Grade Overseers (Electrical) were to be re-designated as Sub Engineers (Electrical). WPC No.562 of 2009 and conn. cases 16 18. The Long Term Settlement of 1986 also provided for the re-designation of Line Helper as Junior Line Assistant and integration of the category of Assistant Lineman with a category of Senior Assistant Lineman. The integrated categories were to be designated as Line Assistants. The re-designated Line Assistants were to carry out the duties and functions which were then being carried on by the Assistant Lineman and Senior Assistant Lineman. Promotion to the category of Line Assistant(re-designated) was from the category of Junior Line Assistant, which was earlier designated as Line Helper. The above will show that the post of Lineman which is referred to in Ext.P3 of the year 1981 was different from the post of Line Helper and Line Assistant. The promotee Meter Readers in the instant case have commenced service as Line Helpers or Line Assistants as the case may be, which were re- designated as Lineman Gr.II and Gr.I. Lineman Gr.II and Gr.I, were, therefore, posts different from the Lineman and what is referred to as experience as Lineman in Ext.P3 of the year 1981 was therefore not experience as Lineman WPC No.562 of 2009 and conn. cases 17 Gr.II or Gr.I as the case may be. As is evident from clause 3 of Article VII of 1986 (Ext.R.8(c) in WPC No.562 of 2009), the workmen in the category of Lineman were to be integrated with Second Grade Overseer and the integrated categories were to be re-designated as Overseer (Electrical). Overseers (Electrical) were to carry out the duties, functions and responsibilities of Second Grade Overseers and Lineman and it was this category as such, that was substituted by Meter Readers, as the feeder category for Overseer Gr.I that in turn was later re- designated as Sub Engineer (Electrical). Therefore, the contention by promotee Meter Readers that their experience as Lineman Gr.II or Gr.I should be treated as sufficient experience, for the purpose of Ext.P3 even after the feeder category for the post of Sub Engineer (Electrical) came to be substituted in the 2000 Long Term Settlement, cannot be accepted. The post of Overseer (Electrical)/Lineman referred to in Ext.P3 was actually the promotion post of Lineman Gr.I which was re-designated as Line Assistant. Line Assistant was the promotion post WPC No.562 of 2009 and conn. cases 18 of Line Helper. Thus, confusion generated from the similarity in the re-designated categories cannot really lead one to the conclusion that Lineman referred to in 1981 and the 5 years requisite experience therein would also comprehend Lineman Gr.II or Gr.I as the case may be. 19. It is not disputed by both the categories that none of them had requisite five years experience as Meter Reader. Consequent upon the substitution of the feeder category by Meter Reader in the Long Term Settlement of 2000, it can also be safely concluded that subsequent to the year 2000, the prescription regarding 5 years experience must apply to the feeder category, which came to substitute the earlier feeder category of Overseer (Electrical)/Lineman. If that be so, the experience required for the post of Sub Engineer (Electrical) subsequent to the Long Term Settlement of 2000, will have to be read along with Ext.P3 Board order of 1981. 20. It is not the case of any one of the petitioners, either by direct recruit Meter Readers or Promotee Meter Readers that they had requisite experience of five years as WPC No.562 of 2009 and conn. cases 19 Meter Readers when they instituted the petitions or even as on date. There is a dispute with regard to the gradation list for the post of Meter Readers and it is now admitted that the final gradation list came to be issued recently, is also the subject matter of challenge in certain other writ petitions which are pending disposal. But the senior-most amongst the Meter Readers who are involved in these cases will acquire five years experience as Meter Readers only in January 2010. But it cannot be disputed that regardless of the dispute regarding seniority among the promotee Meter Readers and direct recruits, the earliest among the Meter Reader had commenced service in the said category only in January, 2005. Petitioners in WPC No.562 of 2009 and 34369 of 2008 have also taken up the contention that the notification issued by the Public Service Commission for direct recruitment to the post of Sub Engineer (Electrical) provides for only five years service in the Board and not five years service as a Meter Reader. He refers to Ext.P5 notification in this regard. I am concerned with the qualifications required for promotion to the post of Sub WPC No.562 of 2009 and conn. cases 20 Engineer (Electrical) and not the qualification required for appointment to the post of Sub Engineer (Electrical) by direct recruitment. The prescription contained in the notification issued by the Public Service Commission which is applicable only to direct recruitment, whether under the 30% category from open market or 10% category from among the employees of the Electricity Board, is not applicable to the case of promotion to the 60% quota among the Sub Engineer (Electrical). I have dealt with the prescription of five years experience with reference to Ext.P3, Long Term Settlement of 2000 and also the earlier Board orders. I have concluded that a person who seeks appointment as Sub Engineer (Electrical) by promotion from among the Meter Readers is required to have minimum five years experience as a Meter Reader in the Electricity Board.