IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 9TH JUNE 2011 / 19TH JYAISHTA 1933 WP(C).No. 14793 of 2007(J) ---------------------------------------- PETITIONER(S): ------------------------ 1. P.SREEGANESAN PILLAI, METER READER,ELECTRICAL SECTION, KERALA STATE ELECTRICITY BOARD, SAKTHIKULANGARA, KOLLAM. 2. J.SURESH KUMAR, METER READER,ELECTRICAL SECTION, K.S.E.B.,PERINAD, KOLLAM. 3. G.VIKRAMAN PILLAI, METER READER,ELECTRICAL SECTION, K.S.E.B.,PERINAD, KOLLAM. 4. RASHEED.S., METER READER,ELECTRICAL SECTION, K.S.E.B.,CHEMMANAD,KOLLAM DISTRICT. 5. S.CHEMBAKAM, METER READER,ELECTRICAL SECTION, K.S.E.B.,OLAYIL,KOLLAM. BY ADV. SRI.M.V.THAMBAN RESPONDENT(S): --------------------------- 1. KERALA STATE ELECTRICITY BOARD, REP.BY ITS SECRETARY, VIDHUDHI BHAVANAM,PATTOM, THIRUVANANTHAPURAM. 2. THE CHIEF ENGINEER (HRM), KERALA STATE ELECTRICITY BOARD, VIDHUDHI BHAVANAM,PATTOM, THIRUVANANTHAPURAM. sts 2/- -2- WP(C)NO.14793/2007 3. ANTONY WILFRED, METER READER,ELECTRICAL SECTION, K.S.E.B.,PERINAD,KOLLAM. 4. SUNIL KUMAR, METER READER,ELECTRICAL SECTION, K.S.E.B.,THANKASSERY,KOLLAM. R1 & R2 BY ADV. SRI. ASOK M.CHERIYAN, SC, KSEB THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts 3/- -3- WP(C)NO.14793/2007 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE COVERING LETTER DATED 7/2/2001 ISSUED BY THE 2ND RESPONDENT. P2 COPY OF THE PROMOTION ORDER DATED 28/2/2001 IN R/O THE 2ND BATCH. P3 COPY OF THE ORDER ISSUED BY THE BOARD DATED 7/2/2003 FOR FILLING 375 POSTS. P4 COPY OF THE REPRESENTATION FILED DATED 7/7/04 BY THE 2ND PETITIONER. P5 COPY OF THE REPRESENTATION FILED DATED 16/10/06 BY THE 5TH PETITIONER. P6 COPY OF THE REPRESENTATION SUBMITTED DATED 17/10/06 BY THE 1ST PETITIONER TO THE 2ND RESPONDENT. P7 COPY OF THE REPRESENTATION FILED DATED 15/12/06 BY THE 3RD PETITIONER TO THE 2ND RESPONDENT. P8 COPY OF THE REPRESENTATION FILED DATED 15/12/06 BY THE 4TH PETITIONER TO THE 2ND RESPONDENT. P9 COPY OF THE JUDGEMENT DATED 13/3/2002 IN OPNO.17257/2000(D) ISSUED BY THIS HON. COURT. P10 COPY OF THE JUDGEMENT DATED 2/1/07 IN WP(C)NO.196/07 ISSUED BY THIS HON.COURT. P11 COPY OF THE ORDER NO.EB/METER READER/WP196/07 DATED 23/3/07. 196/07 ISSUED BY THIS HON.COURT. P12 COPY OF THE CIRCULAR NO.EB4/110/2004 DATED 16/9/04. P13 COPY OF THE BOARD ORDER NO.B.O(FB)NO.2526/2008(CE(HRM) ESTT.GI/08-09 DATED 18/10/2008. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A.TO.JUDGE sts S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No.14793 of 2007 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of June, 2011 J U D G M E N T The petitioners are working as Meter Readers in the Kerala State Electricity Board. They were originally Electricity Workers. Qualified Electricity Workers were eligible for appointment by-transfer to the post of Meter Readers provided they possess the qualifications prescribed. The promotion post for Meter Readers is that of Overseer (re-designated as Sub Engineer later). By Ext.P3 order dated 07.02.2003, 375 persons were promoted as Overseers with retrospective effect from 15.11.1999. Consequent to such promotion, there arose 284 vacancies of Meter Readers. The petitioners were considered for appointment by-transfer to those vacancies and the petitioners were appointed on 15.01.2005 pursuant to the selection for appointment by-transfer. According to the petitioners, the vacancy to which they were appointed by transfer arose on 15.11.1999 and therefore they are entitled W.P.(C)No.14793 of 2007 -2- to seniority and notional fixation benefits with effect from 15.11.1999. The petitioners therefore seek the following reliefs: “(i) to issue a writ of certiorari or other writ or order or direction calling for the records and quash Ext.P11. (ii) to issue a Writ of Mandamus or order or direction to the 2nd respondent to re-consider and pass appropriate orders re-assigning the date of promotion as Meter Readers to the petitioners on 15.11.1999 as expeditiously as possible and at any rate within a time limit that may be fixed by this Honourable Court; (iii) to issue a writ of mandamus or order or direction directing the 2nd respondent to re-assign the date of promotion of the Petitioners as Meter Readers with effect from 19.11.99 or 7.2.2001 with all consequential benefits therefrom atleast notionally. (iv) to issue a writ of certiorari or other writ or order or direction calling for the records and quash Exhibit P13. (v) to issue a writ of mandamus or other writ or order or direction directing the respondents to promote petitioners as Sub Engineer form the date they have become qualified.” 2. The contention of the petitioners' is that, when 284 Meter Readers were promoted with retrospective effect from 15.11.1999, the vacancies of Meter Readers are also correspondingly deemed to have arisen retrospectively with effect from 15.11.1999. Therefore the petitioners are entitled to service benefits as Meter Readers with effect W.P.(C)No.14793 of 2007 -3- from 15.11.1999 as in the case of Meter Readers who have been promoted as Overseers (Sub Engineer), is their contention. The petitioners have an alternate contention that even assuming that the vacancies arose on 07.02.2003 (date of Ext.P3) the petitioners are entitled to seniority and fixation of benefits at least with effect from 07.02.2003, namely the date when the vacancies actually arose. The contention of the Electricity Board in their counter affidavit is that, the vacancies arose only on 07.02.2003. The appointment to those vacancies were not by promotion but by transfer from among qualified employees of the Board working below the post of Meter Readers. According to them, the petitioners were qualified only on 05.03.2001. When the vacancies arose on 07.02.2003, the Board had to make selection for appointment by transfer to those vacancies. Applications were invited on 16.09.2004 and after conducting a selection process the petitioners and others were appointed by order dated 15.01.2005. According to the Board, the petitioners are not entitled to W.P.(C)No.14793 of 2007 -4- seniority or fixation benefits with effect from 07.02.2003 as claimed by them insofar as they were appointed only on 15.01.2005. 3. The petitioners would contend that, they became qualified even prior to 05.03.2001. They would submit that the vacancies in the post of Meter Readers are to be filled up in the ratio of 75:25 between direct recruits and by transfer appointees from among the employees of the Board. To the 75% vacancies, the Kerala Public Service Commission had selected candidates and advised, who joined duty prior to the petitioners as a result of which they joined earlier getting seniority over the petitioners who joined duty only on 15.01.2005. Therefore they lost seniority as viz-a-viz the direct recruits. The petitioners would further contend that as per Ext.P9 judgment this court has held that when persons who were entitled to advice by the PSC earlier who advised later would be entitled to seniority with effect from the date when they ought have been so advised. Counsel for the petitioners W.P.(C)No.14793 of 2007 -5- would argue that, the situation here is similar to the situation in Ext.P9 judgment and therefore the petitioners are entitled to the benefits of Ext.P9 judgment as well. 4. I have considered the rival contentions in detail. 5. The 1st question to be decided in this case is as to whether the vacancies of Meter Readers arose on 15.11.1999 or on 07.02.2003. Admittedly, till 07.02.2003, all the vacancies of Meter Readers were occupied. On 07.02.2003 by Ext.P3 order, the Board promoted 284 Meter Readers as Overseers (Electrical) retrospectively with effect from 15.11.1999. The retrospectivity given to such promotion does not automatically applicable to those vacancies in the post of Meter Readers also with effect from 15.11.1999. The vacancies of Meter Readers arose only on 07.02.2003. For deciding that question the fact that the Meter Readers were promoted retrospectively with effect from 15.11.1999 cannot be taken into account, especially since the appointment to the post of Meter Readers is not by promotion but by appointment by- transfer. Therefore, W.P.(C)No.14793 of 2007 -6- I am of opinion that the petitioners cannot claim any retrospective appointment with effect from 15.11.1999 and consequent fixation benefits. 6. The next question to be decided is as to whether the petitioners are eligible for appointment and fixation atleast with effect from 07.02.2003 when admittedly the vacancies arose. It is not disputed before me now that the method of appointment to the post of Meter Readers is by direct recruitment and by transfer from among lower employees of the Board in the ratio of 75:25. It is not a promotion. Therefore the petitioners cannot seek automatic appointment as soon as the vacancies arose. The counsel for the petitioners would argue that as in the case of promotion in the appointments by-transfer also the vacancies have to be filled up with effect from the date of arising of vacancies. If I accept that contention it would result in very anomalous consequences. For example the PSC conducts selection for various posts by transfer from among qualified persons of the same department in which W.P.(C)No.14793 of 2007 -7- the appointment is to be made. It is not a secret that the PSC selects persons, prepares rank list and advices persons to the vacancies, years after the vacancies have arisen. If the contention of the petitioners is to be accepted then the PSC recruits should also be appointed with effect from the date when the vacancies actually arose, which cannot be the case. Therefore I do not think that the petitioners can even claim appointment retrospectively with effect from 07.02.2003 also. The Board has stated in their counter affidavit that applications were invited on 16.09.2004. The selection was completed and appointments were made on 15.01.2005. I do not think that in such circumstances the petitioners' claim for appointment and fixation benefits with effect from 07.02.2003 can be countenanced. 7. The contention of the petitioners based on Ext.P9 cannot also be countenanced since that is a totally different situation where the PSC fails to advice a person at the right time and advices him/her later giving an earlier effective date of advice, which is not the case here. W.P.(C)No.14793 of 2007 -8- 8. As regards the claim for seniority viz-a-viz direct recruits, I am of opinion that the petitioners should take up the matter appropriately before the appropriate authorities and the authorities have to decide the question after hearing the direct recruits also. The right of the petitioners to do so is reserved. Subject to the same this writ petition is dismissed. Sd/- S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/