IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 30TH NOVEMBER 2010 / 9TH AGRAHAYANA 1932 WP(C).No. 4873 of 2010(H) ------------------------------------- PETITIONER(S): ---------------------- M.C.JACOB, ASSISTANT EXECUTIVE ENGINEER, THOTTIYAR HYDRO ELECTRIC PROJECT, KARIMANAL, ERNAKULAM DISTRICT. BY ADVS. DR.K.P.SATHEESAN SRI.K.K.GOPINATHAN NAIR SRI.M.R.JAYAPRASAD SRI.P.MOHANDAS (ERNAKULAM) SRI.MATHEW SUNNY RESPONDENT(S): -------------------------- 1. KERALA STATE ELECTRICITY BAORD, REPRESENTED BY ITS SECRETARY, VYDUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 2. THE CHIEF ENGINEER (HRM), KERALA STATE ELECTRICITY BOARD, VYDUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. R1 & R2 BY ADV. SRI.K.S.ANIL, SC, KSEB SRI. ASOK M.CHERIYAN, SC, KSEB THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C) NO.4873/2010 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT DATED 20/9/2006. P2 COPY OF THE REVISED SENIORITY LIST OF SUB NGINEERS PUBLISHED BY THE 2ND RESPONDENT DATED 31/10/2006. P3 COPY OF THE ORDER DATED 29/5/2008 ISSUED BY THE 2ND RESPONDENT. P4 COPY OF THE REPRESENTATION FILED BY THE PETITIONER DATED 24/6/2008. P5 COPY OF THE REPRESENTATION FILED BY THE PETITIONER DATED 21/7/2008. P6 COPY OF THE JUDGMENT DATED 10/12/2008 IN WPC NO. 7999/2007. P7 COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT AS EB-6(B) WP(C) NO.7999/2007 DATED 18/3/2009. P8 COPY OF THE ASSISTANT ENGINEERS, WHO WERE PROMOTED AS ASSISTANT EXECUTIVE ENGINEERS WITHOUT COMPLETING 7 YEARS OF SERVICE. P9 COPY OF THE LIST OF PERSONS WHO WERE PROMOTED SUBSEQUENT TO RAJAYYAN HAVING LOWER RANK IN THE CADRE OF ASSISTANT ENGINEER. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A.TO.JUDGE sts T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.4873/2010-H ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 30th day of November, 2010 J U D G M E N T The petitioner is presently working as Assistant Executive Engineer (Civil). He has challenged Ext.P7 order by which the respondents rejected to grant retrospective effect to his promotion to the cadre of Assistant Executive Engineer (Civil). 2. The service particulars of the petitioner show the following:- He was originally appointed as Sub Engineer (Civil) on 01/06/1989. Thereafter, he was promoted to the post of Assistant Engineer (Civil) on 15/05/1996. But it appears that before the appointment of the petitioner as Sub Engineer (Civil), large number of promotions were made in excess of the quota earmarked for Sub Engineers for direct recruitment. This led to the petitioner approaching the authorities to take remedial measures in the matter. By proceedings dated 18/06/2003, the Secretary of the Board informed the second respondent that 147 promotions were made in excess of the quota earmarked for Sub Engineers (Civil) for direct recruitment and, therefore, the directly recruited Sub Engineers (Civil) should be given seniority over the excess promotions. After issuing notice to all W.P.(C). No.4873/2010 -:2:- the promotees about the proposed reversion, rank and seniority of Sub Engineers (Civil) were refixed. Ext.P1 is apparently an order by which directions were issued and, it was implemented by Ext.P2 order. The original rank of the petitioner, namely, 371 was reassigned to 242 in the seniority list of Sub Engineers (Civil), as on 01/01/1994. Consequent revision of the seniority of Assistant Engineer (Civil) was also effected as per Ext.P3 by which the rank of the petitioner which was originally put as 537 has been changed as 348 and the reassigned date of promotion is 08/03/1994. Thereafter, the petitioner submitted representations as per Exts.P4 and P5 to reassign the date of promotion and seniority in the cadre of Assistant Executive Engineer (Civil) from the date on which his juniors were promoted, namely, 31/10/1998. According to him, one Shri Rajayyan.A, who was rank No.337 was promoted as Assistant Executive Engineer (Civil) on 31/10/1998. 3. The main reason for rejection stated in Ext.P7 is that the junior Shri Rajayyan A. was one among the adhoc/temporary appointee and, he has subsequently retired from service also. It is also stated that 7 years service as Assistant Engineer (Civil) is also required for promotion as Assistant Executive Engineer (Civil). 4. The respondents have filed a counter affidavit and an additional counter affidavit as ordered by this Court. W.P.(C). No.4873/2010 -:3:- 5. Heard the learned Standing Counsel for the respondents. 6. The learned counsel for the petitioner submitted that the two grounds stated in Ext.P7 cannot be supported. Exts.P8 and P9 are produced in support of the plea that many of the juniors who have been promoted earlier as Assistant Executive Engineer (Civil) that too without completing 7 years of service are even continuing in service without any reversion and, therefore, the petitioner's seniority in the cadre of Assistant Executive Engineer (Civil) will have to be reassigned. It is the case of the petitioner that 7 years service provided under the Rule is not in the cadre of Assistant Engineer (Civil) alone and the incumbent should have completed a total of 7 years service. Ext.P8 is a list of Assistant Engineers (Civil) who were promoted as Assistant Executive Engineers (Civil)during 1997-2000 considering their total service. Ext.P9 is another such list for the period from 10/1998 to 2000, containing the names of his juniors who were promoted subsequent to Mr.Rajayyan. 7. In this context, the learned counsel for the petitioner relied upon the Special Rules for the Kerala Engineering Service (Civil and General Branch), namely, Rule 4(d). The said rule reads as follows:- W.P.(C). No.4873/2010 -:4:- “(d) An Assistant Engineer shall not be eligible for appointment as Assistant Executive Engineer unless -- (1) he has rendered service under Government for a total period of not less than 3 years and possesses the qualification mentioned in item (i) or in Section-A in item (ii) of the Annexure, or, (2) he has rendered service under Government for a total period of not less than 7 years and possesses any diploma specified in Section-B in item (ii) of Annexure.” Therein, what is mentioned is a total period of 7 years and not 7 years service in the cadre of Assistant Engineer. Therefore, the same will be sufficient. 8. With regard to the persons promoted in Exts.P8 and P9, what is explained in the additional counter affidavit is that the Board had occasion to make promotions on temporary/adhoc basis in order to execute certain projects and other adhoc promotions were then made only considering exigencies of service to overcome the shortage of Officers in the supervisory cadre. It is therefore, pointed out that the petitioner is not entitled to claim appointment on regular basis from the date on which his juniors on reassignment of seniority happened to hold the post of Assistant Executive Engineer (Civil) on adhoc basis. W.P.(C). No.4873/2010 -:5:- 9. There cannot be any dispute that the petitioner will be entitled to be re-assigned the date depending upon the re-assigned date given to his junior in the cadre of Assistant Executive Engineer, on regular basis. 10. In the additional counter affidavit it is stated that adhoc promotions were made for completion of certain projects. But even then, the eligibility of the petitioner for assignment of a particular date above the immediate junior cannot be denied. It is declared so. 11. Needless to say that he is entitled to be assigned a date depending upon the assignment of date to rank No.349, as Assistant Executive Engineer. Ext.P7 is quashed to that extent. The learned counsel for the petitioner submitted that unless the reassignment process is done within a time limit, it may not benefit the petitioner because he may retire from service without getting any promotion as the respondents may postpone the consideration of the matter indefinitely. Therefore, in the light of the apprehension expressed by the petitioner, fresh orders in that regard will be passed within a period of two months. The writ petition is allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) ms