IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 6TH AUGUST 2009 / 15TH SRAVANA 1931 WP(C).No. 4226 of 2008(C) ------------------------- PETITIONER(S): --------------- BALAGOPALAN K.K., RETIRED ASSISTANT EXECUTIVE ENGINEER, KSEB, RESIDING AT: KORANGATTUMUZHIL (H), EDAKKATTUVAYAL, ERNAKULAM. BY ADV. SRI.S.RAMESH BABU RESPONDENT(S): --------------- 1. KSEB REPRESENTED BY ITS SECRETARY, VYDUTHI BHAVANAM, PATTOM, TRIVANDRUM. 2. THE CHIEF ENGINEER (HRM), VYDUTHI BHAVANAM, PATTOM, TRIVANDRUM. ADV. SRI.K.S.ANIL, SC, KSEB FOR R1,2 SRI. ASOK M.CHERIYAN, SC, KSEB FOR R1 & 2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). No. 4226/08. APPENDIX PETITIONER'S EXHIBITS: P1. COPY OF THE COMMUNICATION DTD.28.10.75. P2. COPY OF THE MEMO DTD.7.11.75. P3. COPY OF THE COMMUNICATION DTD.5.7.2004. P4. COPY OF THE COMMUNICATION DTD.23.12.2006. P5. COPY OF THE REPRESENTATION DTD.18.10.2007. RESPONDENT(S)'EXHIBITS R1A. COPY OF THE ABSTRACT OF LONG TIME SETTLEMENT DTD.11.9.95. “B. COPY OF THE SERVICE DETAILS. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P(C).No.4226 of 2008 ================== Dated this the 6th day of August, 2009 J U D G M E N T The petitioner was included in the rank list prepared by the PSC, for appointment to the post of Sub Engineer, in the Kerala State Electricity Board, in the departmental quota, while he was working as a Lineman in the Board. The petitioner was not advised in his turn in the rank list by mistake. Later on, the PSC realised the mistake and advised the petitioner. The petitioner joined duty and continued in service. The petitioner was given seniority under Rule 27(c) of part II of the Kerala State & Subordinate Services Rules, 1958, (KS&SSR) on the basis of his first effective date of advice, in respect of which, the petitioner has no dispute. The petitioner's claim in this writ petition is that the petitioner should be given time bound higher grades due to him after 10 years, 18 years and 25 years reckoning his service from the date of his first advice. The petitioner himself now admits that the petitioner is not entitled to 25 years' grade, since in view of some leave without allowances taken by him, he has not completed 25 years of service. However, he submits that 10 years' grade and 18 years' grade should be reckoned on the basis of his service with effect from the date of first effective advice. The petitioner, therefore, seeks the following reliefs: W.P.C.4226/08 2 “i) Issue a writ of certiorari calling for the records leading upto Exhibit P3 and P4 and quash the same. ii) Issue a writ of mandamus commanding the respondents to grant the petitioner benefits of Higher Grade on completion of 10, 18 and 25 years w.e.f. 24.3.1975 without reckoning the period of LWA as restricting his entitlement to the same.” 2. The Electricity Board would contend that there is no provision anywhere in the rules applicable for computing service for the purpose of higher grades on the basis of the first effective advice. They would submit that the petitioner's service for the purpose of grant of the time bound higher grades can be calculated only with effect from date when he joined duty. They would rely on Rule 2(1) of Part I of KS&SSR, which defines the term 'appointed to a service'. According to them, a person is stated to be appointed to a service when, in accordance with rules, he discharges for the first time the duties of a post borne on the cadre of such service or commences the probation, instruction or training prescribed thereof. A person becomes eligible for higher grades on completing a fixed number of years of service, which term 'service' has to be read in the light of the definition of the term, “appointed to a service”, is the contention of the counsel for the Board. Therefore, according to the Board, the petitioner's higher grade can be reckoned only on the basis of his actual date of joining duty and not the first effective date of advice. 3. I have considered the rival contentions in detail. W.P.C.4226/08 3 4. Of course, the petitioner deserves sympathy, in so far as for no fault of his, he has lost some period of service. But that does not ipso facto make him eligible for all service benefits on the basis of the advice from the first effective date of advice unless the rules enable him to do so. Of course under Rule 27 (c) of Part II of KS&SSR the petitioner is eligible for reckoning of his seniority on the basis of the first effective date of advice. For the purpose of granting higher grades, an employee has to put in a fixed number of years of service. In Rule 2(1) of Part I of KS&SSR the term “appointed to a service” is defined thus: '2. Definitions.- In these Rules unless there is anything repugnant in the subject or context,- Appointed to a service (1) A person is said to be “appointed to a service” when in accordance with these Rules or in accordance with the rules applicable at the time, as the case may be, he discharges for the first time duties of a post borne on the cadre of such service or commences the probation, instruction or training prescribed for members thereof.' 5. I am of opinion that the term 'service' has to be read in conjunction with the definition of the term 'appointed to a service'. Construed so, the petitioner's eligibility for higher grades, which he is entitled to, on completion of a fixed number of years, has to be reckoned on the basis of his actual date of entry into the service or when he commences probation. The petitioner has no case that that has been not been given to him. In fact by admitting that on account W.P.C.4226/08 4 of taking leave without allowances, he has not yet become eligible for 25 years' grade, he accepts the position that for time bound higher grade, what is relevant is actual service. Therefore, the petitioner is not eligible for the relief prayed for. 6. But I am of opinion that the petitioner would certainly be entitled to the benefit of stepping up of pay on par with that of his juniors, if any of his juniors is drawing more pay than him based on the seniority reckoned on the basis of the first effective date of advice. If the petitioner has any claim in that regard, he may approach the Board. If the petitioner files an application in this regard, the same shall be considered and disposed of as expeditiously as possible, at any rate, within two months from the date of receipt of the application. The writ petition is disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge