IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 23RD JANUARY 2009 / 3RD MAGHA 1930 WP(C).No. 10003 of 2004(N) -------------------------- PETITIONER(S): --------------- 1. VARGHESE JOSEPH, AGED 49 YEARS, S/O. JOSEPH (FORMERLY MAZDOOR, K.S.E. BOARD), MUNDACKAPADAVIL VEEDU, KUDAYATHOOR-685 590, VIA. THODUPUZHA. 2. P.P.SARASAN ASARI, AGED 49 YEARS (FORMERLY MAZDOOR,K.S.E.BOARD),PUTHENPURAYIL VEEDU KANJAR-685 592, VIA. THODUPUZHA. 3. K.P.MOHANAN PILLAI, AGED 49 YEARS, S/O. PRABHAKARAN PILLAI (FORMERLY MAZDOOR, K.S.E. BOARD), KALLAMMAKKEL, KLUDAYATHOOR-685 590. BY ADV. SRI.MOHAN JACOB GEORGE SMT.REENA THOMAS RESPONDENT(S): --------------- 1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, BOARD SECRETARIATE, KERALA STATE ELECTRICITY BOARD, PATTOM,TRIVANDRUM. 2. SECRETARY, BOARD SECRETARIATE, KERALA STATE ELECTRICTIY BOARD PATTOM, TRIVANDRUM. 3. STATE OF KERALA, REPRESENTED BY ITS POWER SECRETARY, GOVERNMENT OF KERALA, TRIVANDRUM. ADV. GOVERNMENT PLEADER SHRI.MOHAMMED ANZAR FOR R3 SRI.C.K.KARUNAKARAN, SC FOR KSEB FOR R1 & R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/01/2009, THE COURT ON 23/01/2009 DELIVERED THE FOLLOWING: W.P.(C).No. 10003/04. APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE NOTIFICATION. P2. COPY OF THE CIRCULARS. P3. COPY OF THE CERTIFICATE OF THE EXECUTIVE ENGINEER. P4. COPY OF THE TABULATED STATEMENT. P5. COPY OF THE JUDGMENT DATED 1.11.81 IN O.P.Nos.3932, 4036, 4185 & 4612/1980 & 12/1981. P6. COPY OF THE JUDGMENT IN O.P.No. 6170/81 OF THIS COURT. P7. COPY OF THE JUDGMENT IN O.P.No. 8507/1984 OF THIS COURT. P8. COPY OF THE LETTER DTD.21.5.86 OF THE EXECUTIVE ENGINEER. P9. COPY OF THE CERTIFICATES IN ONE OF THE REGISTERS. P10. COPY OF THE NOTE DTD.15.2.90. P11. COPY OF THE JUDGMENT IN O.P.No. 2392/91 OF THIS COURT. P12. COPY OF THE ORDER DTD.26.10.93 IN W.A.NO.1170/93. 12A. COPY OF THE NOTES OF THE SIX MEMBER COMMITTEE. 12B COPY OF THE LIST OF PERSONS FOUND eligible FOR APPOINTMENT. P13. COPY OF THE ORDER IN CMP NO.1018/95 IN W.A.NO.1093/93 OF THIS COURT. P14. COPY OF THE JUDGMENT DTD.7.2.96 IN W.A.NO.1170/93 OF THIS COURT. P15. COPY OF THE JUDGMENT DTD.19.12.96 IN W.A.NO.1884/96 OF THIS COURT. P16. COPY OF THE ORDER DTD.16.7.97 OF R2. P17. COPY OF THE JUDGMENT DTD.27.7.00 IN R.P.NO.351/97. P18. COPY OF THE REPRESENTATION BY P1. P19. COPY OF THE ORDER DTD.31.1.21 TO P1 BY R1. P20. COPY OF THE COUNTER AFFIDAVIT IN O.P.NO.26046/02 BEFORE THIS COURT. P21. COPY OF THE JUDGMENT DTD.20.8.03 IN O.P.No. 26046/02. P22. COPY OF THE NOTICE DTD.24.9.93 TO THE PETITIONERS. P23. COPY OF THE ORDERS TO THE PETITIONERS. P24. COPY OF THE PORTION OF CHAPTER 10 OF KERALA FINANCIAL CODE VOL.I. P25. COPY OF THE RELEVANT PORTION CHAPTER 10 PART III KSR. P26. COPY OF THE RELEVANT PAGES OF SERVICE BOOK OF P1. P27. COPY OF THE RELEVANT PAGES OF THE SERVICE BOOK OF P2. P28. COPY OF THE -DO- P3. P29. COPY OF THE APPENDIX II OF KERALA TREASURY CODE VOL.II. P30. COPY OF THE RELEVANT PORTION OF RULE 172 OF KERALA TREASURY CODE. P31. COPY OF THE RELEVANT PORTION OF RULE 203 IN CHAPTER 10 OF INTRODUCTION TO INDIAN GOVT. ACCOUNTS AND AUDIT. P32. COPY OF THE REPRESENTATIONS BY THE PETITIONERS. P33. COPY OF THE ACKNOWLEDGEMENT CARDS. P34 TO P38 ARE NOT SEEN RECEIVED IN THE OFFICE. P39A. COPY OF THE REPRESENTATION BY P2. P39B. COPY OF THE REPRESENTATION BY P3. P40. COPY OF THE COUNTER AFFIDAVIT IN O.P.NO.2392/91. P41. COPY OF THE SPECIMEN OF MUSTER ROLLS. P42. COPY OF THE APPENDIX 11 OF KERALA TREASURY CODE VOL.II. P43. COPY OF THE RELEVANT PORTION OF KERALA TREASURY CODE. P44. COPY OF THE CONTINGENT BILLS. P44A. COPY OF THE -DO- P45. COPY OF THE ARTICLE 203 & 204 OF INTRODUCTION TO INDIAN GOVT. AUDIT RULES. P46. COPY OF THE RULE 92(a)(1) OF KERALA TREASURY CODE VOL.I. P47. COPY OF THE TR.7a. P48. COPY OF THE REPLY AFFIDAVIT BY THE PETITIONERS IN O.P.NO.16242/97. P49. COPY OF THE JUDGMENT IN O.P.No. 16242/97. sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P(C).No.10003 of 2004 ================== Dated this the 23rd day of January, 2009 J U D G M E N T 85 provisional employees of the Kerala State Electricity Board had been fighting for regular employment in the Board for years. The number has now dwindled to 3 who are the petitioners in this writ petition. Originally the number was 755. There arose a dispute as to whether they were employed as provisional employees at all. The Electricity Board refused to recognise their claim. Some of them approached this Court by filing two writ petitions, namely O.P.Nos.3090/89 and 2392/91, in which Ext.P11 judgment was passed, wherein a learned Single Judge of this Court upheld the claim of all the 755 for regular employment as electricity workers. The Electricity Board challenged the same before a Division Bench in W.A.No.1093/93. In that, originally Ext.P13 interim order was passed. That order was passed on the report of a committee constituted by the Electricity Board for the purpose of ascertaining the genuineness of the claims of the said 755 candidates. Ext.P12(a) is the report of that committee, in which they found the claim of the 85 candidates worth- considering. Those 85 themselves were separated into two consisting of 59 who were finally found eligible to be considered and 26 still doubtful cases. By Ext.P13 interim order, the Division Bench directed w.p.c.10003/04 2 that pending final disposal of the writ appeal, the 85 persons found eligible be given employment with effect from 1.4.1995. Subsequently, Ext.P14 judgment was passed in W.A.Nos.1093/93 and 1170/93, whereby this Court directed the Board to constitute a committee consisting of 3 top officials of the Board including the Law Officer to scrutinize the applications of such employees with respect to the relevant documents and to recommend the names of the eligible applicants to the Public Service Commission for appointment. However, it was directed that the 85 persons already appointed as per the directions of the Court will continue in service till a decision is taken by the committee. That committee did not find the claim of those 85 persons convincing. Accordingly, their services were terminated. That order was again subjected to challenge. By Ext.P15 judgment in W.A.No.1884/96, another Division Bench of this Court set aside those orders and directed reconsideration. By Ext.P16 order, again the claims of those persons were rejected and their services were again directed to be terminated. A batch of writ petitions and review petitions etc. arising out of that order came up for final hearing before another Division Bench, who passed Ext.P17 judgment. Since that judgment contains the whole history of the case, I deem it proper to extract the whole judgment herein, which reads thus: 'All these cases relate to regularisation of CLR/TLR/HR workers working in the Kerala State Electricity Board. For convenience, we are w.p.c.10003/04 3 referring to the exhibits marked in O.P.No. 16242 of 1997. Ext.P62 advertisement was published calling for applications from persons employed by KSEB as CLR/TLR/HR workers from 1.1.1960 to 17.1.1974, if they worked for 30 days in an year or 100 days in the above 14 years for regular appointment and they were asked to give applications in writing in duplicate, one to the Executive Engineer and another to the Personnel Manger, KSEB, Trivandrum. It is also mentioned that the above applications should be sent by registered post. Form of the application was also enclosed along with Ext.P62. The last date for receipt of the application was 15.11.1975. Accordingly, large number of employees had applied. About 292 persons worked in Kulamavu Dam Division got appointment as Electricity Workers on the basis of the above notification. When steps were taken to fill up certain vacancies through P.S.C. O.P.No. 3932 of 1980 and similar original petitions were filed stating that some of the names similarly placed were omitted to be considered for appointment. By Ext.P63 common judgment, this Court (Chandrasekhara Menon, J.) directed the Board to consider those applications also within a month's time and directed to prepare a list of eligible applicants. This Court also directed the Public Service Commission to consider their case after getting list from the Electricity Board. Some of the persons were not considered thereafter also. O.P.No. 6170 of 1981 was filed by six persons. After considering the matter in detail and after considering the counter affidavit, Justice M.P.Menon found in Ext.P64 judgment that four petitioners are entitled to get appointment in pursuance of Ext.P62 notification and directed the Board to proceed with the matter of their absorption as Electricity workers. Thereafter, O.P.No. 8507 of 1984 was filed by the Kerala State Electricity Workers Federation stating that large number of CLR/TLR/HR workers who were working in the Electricity Board submitted their applications, but their names are omitted. The above writ petition was disposed of by Ext.P65 judgment directing the Electricity Board to send the list to P.S.C. Thereafter, by Ext.P66 the Executive Engineer, Kakkad Dam Division wrote a letter to the Personnel Manager of the Electricity Board stating that since Kakkad Construction Division was formed after the Kulamavu Dam Division was abolished, the files etc. relating to that Dam Division were also brought to the Kakkad Construction Division. It is further stated that it is seen that large number of applications were kept in the Kakkad Construction Division and those applications were forwarded to the Personnel Officer with a copy of the representation of the Union. Few Registers with signature of the then Executive Engineer, Dam Division, also were forwarded. Exts.P67 and P68 points out the genuineness of registers. Finally 755 applicants represented by the Kerala State Electricity Board Workers' Union filed O.P.No. 2392 of 1991. In Ext.P71 judgment (by Mathews P Mathew.J) in O.P.No. 2392 of 1991 the following directions were given: “I, therefore, direct the first respondent Board to consider the claim of the petitioners in accordance with law for regularisation as Electricity workers under the K.S.E.B. expeditiously. In order to facilitate to the scrutiny of the w.p.c.10003/04 4 applications by the Board it will open to those who are referred to in Ext.P14 (755 candidates) to furnish any further details to enable the Board to verify the identity of the applicants concerned. Such details may be furnished within a period of one month from today. The Electricity Board is further directed to furnish the name of the candidates found eligible by them to the P.S.C. Within three months from today. The P.S.C. shall thereon settle the list with reference to the norms already adopted in the matter. I am sure that as a responsible constitutional body take (sic) the P.S.C. will finalise the list on an emergency basis in view of the long delay that has already been caused.” In appeal, by Ext.P72 order a Division Bench of this Court directed the Electricity Board to propose a Scheme for employing the petitioners on provisional basis pending consideration of the writ appeal. They were given provisional appointment for 179 days and for giving permanent employment, they were asked to give a representation. A statement was filed in W.A.No.1093 of 1998 that notices were issued to 755 candidates and only 642 candidates were presented for interview, out of which 272 were in the age group of 13-14 at one time of work in 1969-70 and another 14 persons were below the age of 13 years. It is further stated that even after taking a very liberal stand only 85 candidates were eligible for consideration. It is also stated that out of the 85 candidates if the 26 candidates in whose cases there was difference in age of 3-5 years between that furnished in the application and the documents produced, were excluded only 59 persons as indicated in the first list were eligible to be considered. 2. As per the directions in W.A.No. 1093 of 1993, the Board had decided to constitute a committee consisting of the following persons: 1. The Chief Engineer (Civil) (Gl.) 2. The Deputy Chief Engineer (Ele.) (Admn.) 3. The Superintendent of Police (V&S) 4. The Chief Personnel Officer 5. The Deputy Secretary (Law) 6. Deputy Secretary (Admn.) Finally, in W.A.No. 1093 of 1993 this Court directed the Police to verify identity of the persons whose applications were rejected and conduct an enquiry regarding that matter alone. A reading of Ext.P77 order of the Division Bench shows that it was only relating to those persons other than the 85 persons out of which 59 persons appointed. 82 persons were given provisional appointment. Finally W.A.No. 1093 and 1170 of 1993 w.p.c.10003/04 5 were disposed of after considering the enquiry report etc. with the following directions: “After perusing the report of the Director General of Police and after hearing the parties we are satisfied that further enquiry into the entire matter is necessary. We direct the Board to constitute a committee consisting of at least three top officials of the Board and including the Law Officer. The committee will scrutinise the applications with respect to the relevant documents and recommend the names of eligible applicants to the Public Service Commission for appointments. The persons already appointed as per the directions of this Court will continue in service till a decision is taken by the Committee. The Committee will complete the entire process within six months from today.” Again a committee was constituted and found that all 755 applications were not seen in the rolls and the vouchers produced were bogus as they did not relate to payment of salary but with regard to purchase of Diesel etc. There is no document to show that any of the 755 applicants had worked as CLR/TLR/HR workers or otherwise with the Board. On the basis of the report, the 85 persons who have given provisional employment were also terminated. That was challenged before this Court. In W.A.No. 1884 of 1996 this Court held that since they were terminated without notice, their termination is illegal and directed the Board to issue show cause notice if the Board feels that their cases are not genuine. Finally, show cause notices were issued and after hearing the parties, Ext.P86 order was passed. 3. According to the petitioners, the Executive Engineer, Kulamavu Dam Division had held that the 755 persons were working in the Dam Division. Number of days of service was certified at that time. Even though CLR/TLR/HR rolls were not available, that registers were kept in the Dam Division and on the basis of the above registers it can be seen that all the 755 persons were working. Thereafter, the Court had considered the matter notwithstanding the delay in approaching the Court. The Court directed to verify the matter and give a report. A committee consisting of senior officers verified the records and found that out of the 755 applicants only 645 were participated in the interview, out of which 85 persons were eligible for appointment and they were given provisional appointment. Therefore, it is contended that those 85 persons' case cannot be again looked into. In Ext.P77 order, the Police was directed to consider the case of other employees and not the case of employees whose identify is not disputed. The committee found that those 85 persons were eligible. Therefore, it is the contention of the petitioners that the case of 85 persons cannot be reconsidered. The second committee did not consider each case and it is not stated that these 85 persons found to be eligible by the earlier committee did not produce records. With regard to these 85 persons, there is no finding by the second committee also and finding of the committee is as follows: w.p.c.10003/04 6 “...... This Committee made a detailed evaluation of the eligibility of these 85 persons also and found that there is no reason to give preferential treatment of any nature, on any ground to these 85 persons also and it is decided that these 85 persons are also not eligible to be considered for appointment on regular basis under 1975 notification regarding recruitment of Electricity Workers from among former CLR/TLR/HR workmen, since they are not seen worked as claimed for 30 days or 100 days during the specified period in the said notification. The Committee also decided to request the Board that the provisional employment of these 85 persons may be terminated forthwith and they may be relieved immediately.” Since one committee had already found that they are eligible, it is submitted that in the absence of relevant material it cannot be stated that they are ineligible. Further it is submitted that the earlier committee considered the records especially four registers initialled by the Executive Engineer even though CLR/TLR/HR rolls are not available, and from the registers it is found that these 85 persons had requisite day of work. Nothing is stated about the registers in the second committee's report and it is stated by the petitioners that it can be seen from the registers that their names are there and there case is genuine. It is further submitted that when Electricity Board issued notice they filed reply. But, by Ext.P86 order it was dismissed as it was not proved that they were working as CLR/TLR/HR workers. The CLR/TLR/HR rolls were admittedly absent even at the first instance. Records were not perused. Therefore, it is submitted that as far as these 85 persons are considered, the second Committee as well as the Board went wrong in taking a decision against them as the first Committee after perusing the records when registers are available found that these applications were genuine. 4. Learned counsel for the Electricity Board submitted that in view of the directions in the judgment the Committee should consider the entire case and there were no records to prove that these applications were genuine. It is submitted that the very same Executive Engineer on 17.6.1976 recommended the case of 292 persons out of 569 applicants as genuine. If the Executive Engineer submitted the above letter on 17.6.1976 it can be seen that subsequent applications said to have been filed by the very same Executive Engineer in time cannot be treated as genuine. It is also submitted that no acknowledgment cards were produced by the petitioners before the second enquiry Committee to show that they had applied in time. According to counsel for the petitioners, the applicants and Certificates of the then Executive Engineer are all produced subsequently and both cannot be accepted in view of the circumstances. Several documents were produced before us. Learned counsel for the petitioners submitted that neither in the report of the second Committee nor in Ext.P86 order these documents are referred and they cannot be made use of as an administrative order. Considering the contentions, a Division Bench of this Court directed the Electricity Board to produce four registers by order dated 11.3.1998 in O.P.No. 16242 of w.p.c.10003/04 7 1997 within two weeks from the date of the order. Now an affidavit is filed stating that these four registers are not available. It is the case of the petitioners that at the time when the first Committee considered the matter the registers were available and that is why 85 persons' cases were found out as genuine. Out of the 755 candidates 85 candidates' cases were found to be genuine and they cannot be just brushed away saying that at this distane of time the documents are not available. According to the counsel for the respondents, these registers were missing due to conspiracy with some of the officers and petitioners. Petitioners contend that these registers might have been removed to deny employment to petitioners. Whatever may be the case, it is the case of the petitioners that in view of the first Committee's report it cannot be stated that petitioners have not produced the documents in support of their claim. 5. Earlier, five persons out of the 85 persons filed O.P.No. 13192 of 1997. the above writ petition was dismissed by a Division Bench of this Court on the ground that the second Committee's report was not challenged in the above case. In O.P.No. 16242 of 1997 petitioners challenged the report of the Committee also. The very same Division Bench which dismissed O.P.No. 13192 of 1997 admitted R.P.No.351 of 1997 and listed the case along with O.P.No. 16242 of 1997 for hearing. O.P.No. 15540 of 1994 and W.A.Nos. 1308 of 1996 and 1912 of 1997 were filed by persons who were among the 755 applicants and their cases were not in the list of 85 applicants selected by the first Committee. It is submitted that some of the petitioners are not even in the 755 applicants and their cases were not forwarded by the Personnel Officer by Ext.P61. In any event, with regard to persons other than 85 there is no reason to disbelieve the second Committee's report and therefore, they are not entitled to any benefit. Therefore, we dismiss O.P.No. 15540 of 1994, W.A.Nos.1308 of 1996 and 1912 of 1997. Considering the entire facts of the case and considering the fact that now registers are not available, that in the directions in the earlier writ appeal only persons other than the 85 were directed to be considered by the police and that the second Committee considered the matter at that time registers were not available and first Committee found that they were eligible, we are of the opinion that the Electricity Board should reconsider the matter of these persons selected by the first Committee. Out of the 85 only 67 have challenged the order that is, 62 persons in O.P.No. 16242 of 1997 and 5 persons in O.P.No. 13192 of 1997. We direct the Electricity Board to consider their case sympathetically within three months from the date of receipt of a copy of this judgment with notice to the petitioners. The persons who are interested in proceeding with the case may make specific representation within one month from the date of receipt of a copy of this judgment and Board will consider each of the case separately and pass individual orders after analysing the available evidence and contentions in the representations, within two months from the date of receipt of the representations. R.P.No.351 in O.P.No. 13192 of 1997 and O.P.No. 16242 w.p.c.10003/04 8 of 1997 are disposed of accordingly.' 2. Although in Ext.P17 judgment the Division Bench almost upheld the claims of 85 persons and directed sympathetic consideration by Ext.P19 order, the Board again rejected the claims of the said persons. Again the same was subjected to challenge. By Ext.P21 judgment in O.P.No.26046/2002, a learned Single Judge of this Court set aside the order of termination from service of the employees and directed reconsideration finding specifically that the earlier reconsideration was not with the sympathy the employees deserved as directed by the Division Bench. But still the Electricity Board was adamant and they passed Ext.P23 series of orders again rejecting the claims of all the persons. Ext.P23 series of orders are under challenge before me. 3. The contention of the petitioners is that originally the committee by Exts.P12(a) considered all relevant records available at that time and found 85 persons to be eligible for consideration for appointment as regular workers. When the subsequent committees considered the case of the petitioners and others, many of those documents were missing and it was without referring to those relevant documents based on which the employees were found eligible by the original committee that the present committee has negatived the claims of the petitioners and others. According to them, in so far as on w.p.c.10003/04 9 the basis of the relevant documents one expert committee found the petitioners eligible for consideration which has been upheld by a series of decisions of this Court, it is totally unjust to drive the petitioners to further litigation, in so far as it was the duty of the Board to preserve those documents, especially when the litigation has been on going. The petitioners, therefore, seek the following reliefs: “A. Call for the records relating to Exts.P1 to P34 and issue a Writ of Certiorari or such other appropriate writ or order quashing Ext.P23 series rejecting the claim of the Petitioners for reappointment and for regularisation as Electricity Workers in the service of Respondents 1