IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HON'BLE Ag. CHIEF JUSTICE MRS.MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 22ND DAY OF DECEMBER 2011/1ST POUSHA 1933 WA.No. 1047 of 2010 ( ) ================= AGAINST THE ORDER/JUDGMENT IN WPC.11715/2005 DATED 22-01-2010 APPELLANT(S)/RESPONDENTS 1 & 2 ======================= 1 KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY VYDYUTI BHAVANAM PATTOM THIRUVANANTHAPURAM. 2 CHIEF ENGINEER (HRM), VYDYUTI BHAVANAM PATTOM THIRUVANANTHAPURAM. BY ADV. SRI.PULIKOOL ABUBACKER, SC, KSEB RESPONDENT(S)/PETITIONERS/3RD RESPONDENT: ================================= 1 GOPALAKRISHNAN.V., LINEMAN GRADE-I, ELECTRICAL SECTION KADAPPAKKADA KOLLAM. 2 E.C.SURESH,LINEMAN GRADE-I, ELECTRICAL SECTION MANIPUZHA THIRUVALLA. WA.No. 1047 of 2010 2 3 SEBASTIAN JOSEPH, LINEMAN GRADE-I, ELECTRICAL SECTION MANIPUZHA THIRUVALLA. 4 GEEVARGHESE, LINEMAN GRADE-I, ELECTRICAL SECTION CHATHANNOOR. 5 P.MURALEEDHARAN, LINEMAN GRADE-I, ELECTRICAL SECTION VELIYAM KOLLAM. 6 N.V.SREE KUMAR, LINEMAN GRADE-I, 110 K.V. SUB STATION AMBALAPPURAM KOTTARAKKARA. 7 H.ANSARUDEEN, LINEMAN GRADE-I, ELECTRICAL SECTION VELIYAM KOLLAM. 8 JOHN JACOB, LINEMAN GRADE-I, ELECTRICAL SECTION VELIYAM KOLLAM. 9 SHAINULABDEEN.A., LINEMAN GRADE-I, ELECTRICAL SECTION AYOOR KOLLAM. 10 NAZARUDEEN KUNJU.A., LINEMAN GRADE-I ELECTRICAL SECTION THEVALAKKARA KOLLAM. 3 WA.No. 1047 of 2010 11 S.NOUSHAD, LINEMAN GRADE-I, ELECTRICAL SECTION KARUNAGAPPALLY NORTH. 12 R.P.THANKALAL, LINEMAN GRADE-I, ELECTRICAL SUB DIVISION PALLIMUKKU KOLLAM. 13 RAVI KUMAR.K., LINEMAN GRADE-I, ELECTRICAL SECTION VELILYAM KOLLAM. 14 C.K.GOPIKUTTAN PILLAI, LINEMAN GRADE-I, ELECTRICAL SECTION T.C.M.S. KOLLAM. 15 J.GOPALAKRISHNA PILLAI, LINEMAN GRADE-I, ELECTRICAL SECTION OLAI KOLLAM. 16 G.GEORGEKUTTY, LINEMAN GRADE-I, ELECTRICAL SECTION ANCHAL KOLLAM. 17 A.J.NAJUMUDEEN, LINEMAN GRADE-I, ELECTRICAL SECTION KOTTIYAM. 18 M.KRISHANKUMAR, LINEMAN GRADE-I, ELECTRICAL SECTION AYATHIL KOLLAM. 19 MAHIPAL.K., LINEMAN GRADE-I, ELECTRICAL SECTION AYOOR KOLLAM. WA.No. 1047 of 2010 4 20 RAJEEV KUMAR.K., LINEMAN GRADE-I, T.C.M.S. ELECTRICAL SUB DIVISION PALLIMUKKU KOLLAM. 21 LALUCHAN.L., LINEMAN GRADE-I, ELECTRICAL SECTION CHENGANNUR. 22 JOHN DAVID, LINEMAN GRADE-I, ELECTRICAL SECTION NOORANAD. 23 V.R.SUNILKUMAR, LINEMAN GRADE-I, ELECTRICAL SECTION CONDONMENT KOLLAM. 24 RAJASEKHARAN PILLAI.G., LINEMAN GRADE-I, ELECTRICAL SECTION EZHAMKULAM PATHANAMTHITTA. 25 SREEKUMAR N.V., LINEMAN GRADE-I, ELECTRICAL SECTION PANDALAM PATHANAMTHITTA. 26 SAJEEVAN.D., LINEMAN GRADE-I, ELECTRICAL SECTION ADOOR PATHANAMTHITTA. 27 JAYAPRAKASH.C., LINEMAN GRADE-I, ELECTRICAL SECTION KADAMBANAD ADOOR PATHANAMTHITTA. WA.No. 1047 of 2010 5 28 N.ANIL KUMAR, METER READER, ELECTRICAL CIRCLE KOZHIKODE. BY ADV. SRI.S.RAMESH BABU THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 22-12-2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 6 MANJULA CHELLUR, Ag.C.J & P.R.RAMACHANDRA MENON, J. ---------------------------------------------- W.A.No. 1047 of 2010 ---------------------------------------------- Dated this the 22nd day of December, 2011 JUDGMENT Manjula Chellur, Ag.C.J. By the consent of both the counsel, the matter is heard and disposed of on merits. The appellants/respondents approached the learned Single Judge claiming promotion to the post of Meter Reader, pursuant to a circular dated 16.9.2004 atleast from the date on which their immediate junior was promoted as per Exhibit P5 order dated 15.1.2005. According to the appellants, as on the date of occurrence of vacancy, i.e., 7.2.2003, the respondents/petitioners were not qualified because of want of departmental test. Therefore, they were not eligible as such for promotion to the post of Meter Reader as on 7.2.2003. The learned Single Judge, based on the decision in W.P(C).No.10602 of 2006, disposed of the present Writ Petition on 22.1.2010. Aggrieved by the same, the appellant-Electricity Board is before us. WA.1047/10 2 According to the learned counsel representing the Electricity Board, subsequent to disposal of W.P(C).No. 10602 of 2006, an appeal came to be filed in W.A.No.1314 of 2009 dated 4.8.2009, wherein the learned Division Judge set aside the judgment in W.P(C).No.10602 of 2006. Therefore, the impugned judgment deserves to be set aside by virtue of judgment of the Division Bench in W.A.No. 1314 of 2009. We have gone through the judgments of the learned Single Judge as well as the Division Bench referred to above. As on today, we note that as against W.P(C).No.10602 of 2006, only W.A.No.1314 of 2009 was filed. On going through the judgment of the Division Bench, we are convinced that the Division Bench took into consideration the factual situation as on the date of disposal of the Writ Appeal with reference to the number of vacancies available as on 7.2.2003 and also the settlement between the Union and the Electricity Board. The very commencement of the judgment refers to existing 284 vacancies in the cadre of Meter Reader under the appellant-Electricity Board as on 7.2.2003. The question was, to fill up these vacancies, what was the eligibility criterion and whether a person, who did not have the departmental test qualification as on 7.2.2003 could be considered for promotion to the post of Meter Reader. However, WA.1047/10 3 at paragraph 4 of the Division Bench judgment, Their Lordship observed as under: “4. The KS & SSR have been adopted by the KSEB by virtue of its regulation making power under section 79(c) of the Electricity Supply Act, 1948. As per the Rules contained in KS & SSR governing promotion, the claim of incumbent in the feeder category has to be considered with reference to the date of occurrence of vacancy. There are several decisions of the Apex Court and of this court that even if there is a delay from the part of the appointing authority to order promotion, the claim has to be considered with reference to the date of occurrence of vacancy.” Ultimately, after referring to the KS & SS Rules Their Lordship said, so far as the procedure governing the promotion, the claim of the incumbent in the feeder cadre has to be considered with reference to the date of occurrence of vacancy. No doubt, the judgment in W.P(C).No.10602 of 2009 came to be set aside in this case, but it was only on factual situation as on 7.2.2003. However, the law governing the promotion procedure is referred to at paragraph 4 of the judgment in W.A.No.1314 of 2009, which is not at all disturbed by any higher authority after disposal of the Writ Appeal. The observation of the learned Division Bench at paragraph 4 of the judgment has reached finality, which governs the field of promotions as on today. In that view of the matter, considering the factual situation in the present WA.1047/10 4 appeal, we note that the respondents/petitioners got qualified in the Month of February, 2004. Apparently, they are seeking for promotion to the post of Meter Reader, which fell vacant subsequent to they becoming eligible on account of departmental test. Having regard to the observation of the Division Bench as stated above at paragraph 4 of the judgment, if the claim of the present respondents has to be considered with reference to the date of occurrence of vacancy, the appellant-Board has to take into consideration the case of the respondents/petitioners subsequent to February, 2004. If any vacancy has come into existence, the case of the respondents/petitioners has to be considered against such vacancy, provided they are otherwise eligible, including the departmental test and roster. In the above circumstances, we dispose of the Writ Appeal with a direction to the appellant-Board to consider the case of the respondent/petitioner in the light of the above observations within three months from the date of receipt of a copy of this judgment. MANJULA CHELLUR, ACTING CHIEF JUSTICE P.R.RAMACHANDRA MENON, JUDGE vgs