IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI FRIDAY, THE 1ST FEBRUARY 2008 / 12TH MAGHA 1929 WP(C).No. 19924 of 2007(V) ---------------------------------------- PETITIONER: -------------------- N.K. SOMAN, ASSISTANT EXECUTIVE ENGINEER (ELECTRICAL), 400 KV SUB STATION, KERALA STAE ELECTRICITY BOARD, MADAKKATHARA P.O., THRISSUR. BY ADV. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI SMT.DHANYA CHANDRAN RESPONDENTS: ------------------------- 1. KERALA STATE ELECTRICITY BOARD, VYDHYUTHI BHAVAN, PATTOM, TRIVANDRUM, REPRESENTED BY ITS SECRETARY. 2. THE CHAIRMAN, KERALA STATE ELECTRICITY BOARD, VYDHYUTHI BHAVAN, PATTOM, TRIVANDRUM. 3. THE CHIEF ENGINEER, HUMAN RESOURCE MANAGEMENT (HRM), KERALA STATE ELECTRICITY BOARD, VYDHYUTHI BHAVAN, PATTOM, TRIVANDRUM. 4. THE INSPECTOR GENERAL OF POLICE (VIGILANCE AND SECURITY), KERALA STAE ELECTRICITY BOARD, VYDHYUTHI BHAVAN, PATTOM, TRIVANDRUM. 5. SHRI T.M. MANOHARAN, CHAIRMAN, KERALA STATE ELECTRICITY BOARD, VYDHYUTHI BHAVAN, PATTOM, TRIVANDRUM. BY ADV. SRI.N.N.SUGUNAPALAN(SR.)SC,KSEB SRI.K.S.ANIL, SC, KSEB THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/02/2008 ALONG WITH WPC NO. 29579 OF 2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.19924/2007 V APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF RELEVANT EXTRACT OF SENIORITY LIST OF ASSISTANT EXECUTIVE ENGINEERS – 75% GRADUATES WITH EFFECT FROM 23/11/1983 PUBLISHED BY THE 1ST RESPONDENT. EXT.P2: COPY OF LETTER NO.EB.1/2428 DTD. 20/06/1997 ISSUED BY THE EXE.ENGINEER TO THE DEPUTY CHIEF ENGINEER, ELE.DIVISION, PERUMBAVOOR. EXT.P3: COPY OF PROCEEDINGS NO.EB1/COMPLAINTS/DLSIS/SLSIS/ CHALAKUDY/02-03/1698 DTD. 8/08/02 OF THE EXE.ENGINEER CHALAKUDY. EXT.P4: COPY OF ORDER DTD. 8/04/05 VIDE NO.BO(FM) NO.1113/2005 (ESTT.III/534/2004 ISSUED BY THE 1ST RESPONDENT. EXT.P5: COPY OF REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DTD. 7/07/05. EXT.P6: COPY OF JUDGMENT DTD. 10/08/05 IN WP(C)23746/05 OF THIS HON'BLE COURT. EXT.P7: COPY OF PROCEEDINGS OF THE 2ND RESPONDENT VIDE NO. LAS1/11979/05 DTD. 17/11/05. EXT.P8: COPY OF LETTER NO.A11/3554/02/605 DTD. 17/03/2005 ISSUED BY THE 4TH RESPONDENT TO CE, DISTRIBUTION (CENTRAL), ERNAKULAM. EXT.P9: COPY OF JUDGMENT DTD. 23/11/05 IN WP(C) 18368/05 OF THIS HON'BLE COURT. EXT.P10: COPY OF MEMO OF CHARGES NO.EBVS.1/25/05 DTD. 18/07/05 ISSUED TO THE PETITIONER BY THE RESPONDENT NO.3. EXT.P11: COPY OF REPLY TO THE MEMO OF CHARGES FILED BY THE PETITIONER ON 15/10/05. EXT.P12: COPY OF REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE MEMBER, KSEB, TRIVANDRUM ON 8/04/06. Kss ..2/- ...2..... WPC.NO.19924/2007 V EXT.P12: COPY OF REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE MEMBER, KSEB, TRIVANDRUM ON 8/04/06. EXT.P13: COPY OF REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT ON 29/06/06. EXT.P14: COPY OF REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT ON 21/07/06. EXT.P15: COPY OF ORDER NO.CE(DC)/GB.1/DIS.ACTION/2006-07/174 DTD. 13/09/06 ISSUED BY THE CHIEF ENGINEER, DISTRIBUTION CENTRAL, VYTTILA, EKM. EXT.P16: COPY OF APPEAL SUBMITTED BY THE PETITIONER BEFORE THE RESPECTED MEMBER, KSEB DTD. 4/01/07. EXT.P17: COPY OF REQUEST SUBMITTED BY THE PETITIONER BEFORE THE INFORMATION OFFICER, KSEB OF THE 1ST RESPONDENT ON 3/01/07. EXT.P18: COPY OF REPLY ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER ON 1/02/2007. EXT.P19: COPY OF ORDER NO.B.O.(FM)NO.2556/2007 (ESTT.III/6271/ 2006) DTD. 9/11/07 ISSUED BY THE RESPONDENTS. 1ST RESPONDENT'S EXHIBITS: EXT.R1(A): COPY OF THE PLAINT FILED BY THE CONSUMER AS O.S.NO.30 OF 2005 BEFORE THE HON'BLE SUB COURT, IRINJALAKUDA. EXT.R1(B): COPY OF THE STATEMENT FILED BY THE 1ST RESPONDENT BEFORE THE SUB COURT, IRINJALAKUDA. /TRUE COPY/ P.A.TO JUDGE Kss V. GIRI, J. ------------------------------- W.P(C) Nos. 19924 & 29579 OF 2007 ----------------------------------- Dated this the 1st day of February, 2008 JUDGMENT One of the issues which arises for consideration in these two cases relates to the right of the incumbent to be considered for provisional promotion to a selection post governed by Rule 31 (a) (i) of Part II KS & SSR. Therefore, they have been heard and disposed of by this common judgment. 2. The petitioner in WP(C) No.19924 of 2007 is an Assistant Executive Engineer(Electrical) who was included in Ext.P1 seniority list for promotion to the post of Executive Engineer. Apparently, by Ext.P4 order, 142 persons who were juniors to him were promoted as Executive Engineers, but the petitioner was denied such promotion. Representations submitted by him in this regard were rejected under Ext.P7 order. The reason for denial of his promotion is that disciplinary proceedings, as evidenced by Ext.P10, have not been finalised. 3. The petitioner in WP(C) No.29579 of 2007 is an Executive Engineer(Civil) who aspires for promotion to the post of Deputy WPC Nos.19924 & 29579 of 2007 2 Chief Engineer. Reference is made to Ext.P2 seniority list which shows that he is senior to the 3rd respondent. But, notwithstanding that, the petitioner's juniors were promoted under Ext.P1. Ext.P3 representation submitted by the petitioner was rejected under Ext.P5 order, especially on the premise that the memo of charges issued in the year 2004 is yet to be finalised. The petitioner makes reference to Ext.P8 which shows that one Mr.Sathyadas, who is also facing disciplinary proceedings on charges identical to Ext.P6 was promoted as Chief Engineer under Ext.P8 order notwithstanding the pendency of disciplinary proceedings against him. 4. It is contended by the petitioners that promotions hitherto effected in the Board and referred to in the writ petition are provisional promotions. Pendency of disciplinary proceedings should not stand in the way of petitioners being considered in this regard. Reference is made to the proviso to Rule 31 (a) (i) of Part II of the KS & SSR which is applicable to the KSEB. Petitioners' seniority should not have been overlooked, in the matter of WPC Nos.19924 & 29579 of 2007 3 provisional promotions impugned in the writ petition. The counter affidavit would show that the Board has taken shelter under Rule 28(b)(i)(7), Note (1) of Part II KS &SSR. It is submitted that the assessment of the suitability of an officer for promotion by the Departmental Promotion Committee(DPC) is obviously contemplated for a regular promotion. What is sought for in the instant case is provisional promotion. DPC has not been convened either for the post of Executive Engineer or to the post of Deputy Chief Engineer and consequently there is no bar against provisional promotions being effected. Ext.P4 order in WP(C) 19924 of 2007 and Ext.P1 order in WP(C) 29579 of 2007 will show that the promotions effected were provisional promotions, in terms of Rule 31 (a) (i) of Part II KS & SSR . If that be so, the act of the Board overlooking the seniority of the petitioner is illegal. 5. In so far as WP(C) 19924 of 2007 is concerned, it is pointed out that Ext.P15 is an order of punishment by the disciplinary authority barring one increment with cumulative effect. It has been challenged in Ext.P16 appeal before them. At any WPC Nos.19924 & 29579 of 2007 4 rate, Ext.P15 should not stand in the way of the petitioner being considered for provisional promotion. Firstly for the reason that Ext.P15 has been issued about one year after Ext.P4 order of promotion promoting 142 juniors of the petitioner and also for the reason that on expiry of one year from the date of Ext.P1, punishment should be deemed to have been suffered. At any rate, the assessment of suitability in terms of Rule 28(b)(7) is not contemplated in the case of promotion. 6. In so far as the WP(C) 29579 of 2007 is concerned, it is pointed out that double standards have been employed by the Board in as much as that, notwithstanding the pendency of disciplinary proceedings, another person who is facing charges identical to that contained in Ext.P6 has been provisionally promoted as Chief Engineer as evidenced by Ext.P8. 7. I heard the learned counsel for the petitioners Sri.Jaju Babu and Ramesh Babu, learned Senior counsel Sri.N.N.Sugunapalan and learned Standing Counsel for the Electricity Board, Sri.K.S. Anil. WPC Nos.19924 & 29579 of 2007 5 8. The petitioners pray for a direction to respondents to promote them to the next category on the premise that there is no other factor which would stand in the way of them of being considered for the next higher post. Admittedly, the petitioners have to be promoted to a selection post. With respect to regular promotion, as rightly submitted by Mr.Sugunapalan, the entitlement will be governed by Rule 28(b)(i) of Part II of KS &SSR. This involves assessment of suitability. But, that can only be done by the DPC. Proceedings taken by the DPC is again not final as it is open to the person who is either not included in the list or who has been superseded to again approach the DPC for revision of the select list. While a concerned incumbent may be facing disciplinary action as per Note (1) to Rule 28(7), he should still be considered by the DPC, but, by adopting the sealed cover procedure. In this way, his claim for promotion with reference to the vacancies which have arisen and when he was otherwise eligible for promotion will be considered after completion of disciplinary proceedings. WPC Nos.19924 & 29579 of 2007 6 9. Mr.Sugunapalan is also right in contending that there cannot be any vested right on the part of the petitioners to be provisionally promoted, as such provisional promotion should left to the appointing authority's right to be considered for regular promotion. But having said so, I take note of the fact that the promotions effected in both cases are provisional promotions. admittedly, governed by Rule 31(a) (i) of Part II of KS & SSR. If that be so, there must be some reason why the seniority of the petitioners is over looked, by provisionally promoting their juniors. I also take note of the averments in the writ petition, which do not seem to have been sufficiently controverted, that other persons who are also facing disciplinary proceedings have been provisionally promoted. Strictly going by Rule 31(a) (i), Board is entitled to do so. But if that be so, why should different yard sticks be adopted in the petitioners' case. 10. I further take note of the fact that in so far as WP(C) 27579 of 2007 is concerned, another person who faces disciplinary action, on charges identical to those contained in WPC Nos.19924 & 29579 of 2007 7 Ext.P6, has apparently been considered suitable for promotion as Chief Engineer where as the petitioner has not been considered for promotion as Deputy Chief Engineer. In an ideal situation, the appointing authority should convene the DPC as and when vacancy arises. But, it is hard to ignore the fact that the promotions effected hitherto forming the subject matter of the two writ petitions are provisional promotions. In the result, the Writ Petitions are disposed of in the following terms: WP(C) No.19924 of 2007 : i. The 1st respondent is directed to take steps to convene the DPC for the post of Executive Engineer(Electrical), as early as possible, at any rate, within a period of three months from the date of receipt of a copy of this judgment. DPC so convened shall consider the case of the petitioner in terms of Rule 28(b)(i) of Part II of KS &SSR. ii. If the 1st respondent is unable to convene the DPC before the aforementioned time, the petitioner shall be provisionally promoted to the post of Executive Engineer by considering him on WPC Nos.19924 & 29579 of 2007 8 par with his juniors, promoted under Ext.P4. iii. The disciplinary proceedings evidenced by Ext.P10 shall be finalised within three months of the date of receipt of a copy of this judgment. iv. As and when the DPC is convened for the post of Executive Engineer(Electrical), petitioner shall also be heard in accordance with law and obviously the provisional promotion of the petitioner and all other persons, shall be subject to the select list to be published by the DPC. v. In the facts of the case, I deem it unnecessary to consider the correctness of the allegations of malafidies levelled by the petitioner. I direct that the said allegations be eschewed from considerations. WP(C) No. 29579 of 2007 : i. The 1st respondent shall convene the DPC to the post of Deputy Chief Engineer(Civil) within a period of three months of the date of receipt of a copy of this judgment. ii. If the 1st respondent is unable to do so or fails to do so, WPC Nos.19924 & 29579 of 2007 9 petitioner shall be provisionally promoted as Deputy Chief Engineer(Civil), on par with the 3rd respondent. iii. As and when the DPC is convened, the petitioner shall be considered for regular promotion along with other eligible persons and it is needless to mention that provisional promotions will be subject to review, depending upon the select list to be published on the recommendations of the DPC. The Writ Petitions are disposed of as above. V.GIRI, JUDGE ttb WPC Nos.19924 & 29579 of 2007 10