IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 20TH FEBRUARY 2009 / 1ST PHALGUNA 1930 WP(C).No. 16913 of 2003(L) --------------------------------------- PETITIONER(S): ------------------------ 1. P. NARAYANAN, LINE ASSISTANT, THRISSUR MUNICIPAL CORPORATION, ELECTRICITY DEPARTMENT, THRISSUR. 2. V. SUKUMARAN, JUNIOR LINE ASSISTANT THRISSUR MUNICIPAL CORPORATION, ELECTRICITY DEPARTMENT, THRISSUR. BY ADV. MR.C.R.KRISHNA RAJ RESPONDENT(S): ------------------------- 1. THE DIRECTOR OF MUNICIPAL ADMINISTRATION, (NOW RE-DESIGNATED AS DIRECTOR OF URBAIN AFFAIRS) THIRUVANANTHAPURAM. 2. THE THRISSUR CORPORATION ELECTRICITY DEPARTMENT, REPRESENTED BY THE ASSISTANT SECRETARY, THRISSUR MUNICIPAL CORPORATION, THRISSUR. 3. THE THRISSUR MUNICIPAL CORPORATION REPRESENTED BY ITS SECRETARY, THRISSUR CORPORATION, THRISSUR. ADV. MR.K.B.MOHANDAS,SC,THRISSUR CORPORATION FOR R2 BY ADVS. MR.LELLULAL T.G.THUNDATHIL FOR R2 MR.K.A.SREEJITH FOR R2 GOVERNMENT PLEADER MR. P.K.RAVIKRISHNAN FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON I.A. NO.1923/2003 IN W.P.(C) NO.16913/2003 DISMISSED 20.02.2009 SD/- K.SURENDRA MOHAN, JUDGE APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE ORDER DT. 19.1.70 ISSUED BY THE STATE GOVERNMENT. P2:- COPY OF THE ORDER DT. 26.5.70 PRESCRIBING QUALIFICATION FOR THE POST OF LINEMAN. P3:- COPY OF THE ORDER DT. 7.12.70. P4:- COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN OP. 11349 /90 DT. 6.12.2000. P5:- COPY OF THE DIVISION BENCH DECISION OF THIS HONOURABLE COURT IN W.A. 640/01 DT. 20.11.01. P6:- COPY OF THE HONOURABLE COURT IN OP. 25258 /02 DT. 5.9.02. P7:- COPY OF THE ORDER DT. 16.1.03 ISSUED BY THE IST RESPONDENT. P8:- COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN CONTEMPT OF COURT CASE CCC. 257/03 DT. 20.3.03. /TRUE COPY/ P.S. TO JUDGE tss K. SURENDRA MOHAN, J ------------------------------------------------------------ W.P(C) NO: 16913 OF 2003-l ----------------------------------------------------------- Dated this the 20th February,2009. JUDGMENT The petitioners are employees of the second respondent Thrissur Corporation Electricity Department. The first petitioner was a line assistant and the second petitioner was a junior line assistant in the department at the time of filing of the writ petition. They challenge the denial of promotion to the post of Overseer by the Thrissur Municipal Corporation. 2. The Thrissur Municipal Corporation is the only local authority in the State where the electricity supply within the municipal area is carried on by it directly, through its electricity department. The Government of Kerala as per orders applicable has accorded sanction to adopt the staff pattern, the method of recruitment and qualifications applicable to the staff in the KSEB, to the Thrissur Muncipal Electricity Department also. The relevant order in this connection is Ext.P1. 3. The petitioners along with three others had approached this Court earlier by filing O.P.11349/90 claiming that they were entitled to be promoted as Overseers. They had also challenged W.P(C) No: 16913/2003 2 the promotions given to respondents 4 to 13 in the said original petition. After considering the contentions of the rival parties and the issues that arose for consideration, this Court has found in the operative portion of judgment dated 6.12.2000 as follows. “In these circumstances, I am of the view that the stand of the Municipality justifying the promotion given to respondents 4 to 13 is unjustified and accordingly are set aside. The respondents 1,2 and 3 are directed to review all appointments and promotions made in the Electricity Department subsequent to 19.11.1990 which is the date of Ext.P9 based on Ext.P7 judgment of this Court, after hearing the necessary parties. In the absence of any Government Order, the tripartite agreement will not have the effect of modifying the scope of Ext.P3 as incorporated in Ext.P7.” The said judgment is Ext.P4 in this original petition 4. The Thrissur Municipal Corporation and the Assistant Secretary, Electricity Department, Corporation of Thrissur challenged Ext.P4 judgment in W.A.640/2001. The writ appeal was disposed of by judgment dated 20.11.2001, which is Ext.P5. In Ext.P5 this Court has affirmed the judgment Ext.P4 with only a slight modification. This Court has held as follows:- “We find respondents 4 to 13 who are affected parties have not challenged the direction given by the learned single judge. Appeal is preferred only by the Municipal Council and another as well as by third parties. In such circumstances we are of the view as against respondents 4 to 13 judgment of the learned W.P(C) No: 16913/2003 3 single judge would stand. It is therefore unnecessary go give effect to the general direction given by the learned single judge to review all appointments and promotions made in the Electricity Department at this distance of time. We therefore set aside the direction given by the learned single judge to the Municipal Council to review all promotions and appointments made in the Electricity Department subsequent to 19.1.1990. In all other respects the judgment would stand confirmed. Appeals are disposed of as above.” 5. The resultant position is that the respondents have been directed to review the promotions given to respondents 4 to 13 and to consider the claim for promotion made by the petitioners herein. However, since no orders were passed in compliance with the directions of this Court, the petitioners along with another person approached this Court again by filing O.P.25258/2002. The said O.P was disposed of directing the first respondent Director of Municipal Administration, Trivandrum to consider and pass orders on the claims of the petitioners within three months. Thereafter Ext.P7 order has been passed on 16.1.2003. As per the said order one of the petitioners in the earlier writ petition, Mr. Sreedharan was promoted as Overseer. The present writ petition is filed by the petitioners challenging Ext.P7 order. 6. According to the petitioners, though there was a positive direction from this Court to review the promotions given to W.P(C) No: 16913/2003 4 respondents 4 to 13 and to consider the claims for promotion made by the petitioners, no such consideration has been made. Counsel for the petitioners placed reliance on the observations of this Court in another judgment of this Court dated 20.2.2008 in O.P.5183/2003. The judgment mentions that in the said original petition this Court had directed the Director of Municipal Administration to file an affidavit stating whether the directions of this Court in the judgments referred to above have been complied with or not. Pursuant to the said direction the Director of Municipal Administration had filed an affidavit on 13.2.2008 stating that the directions issued by the Division Bench had not been complied with, due to some unavoidable circumstances. He therefore prayed for the grant of 45 days time from 14.2.2008 to complete the process. Hence, it is submitted that Ext.P7 cannot be construed as having been issued in compliance with directions of this Court. Therefore, the counsel for the petitioners prays for setting aside Ext.P7 and for issuing a fresh direction to give effect to the orders of this Court. 7. The Standing counsel for the respondents submitted that a counter affidavit has already been filed in the above Original Petition contending that the claims of the petitioners were W.P(C) No: 16913/2003 5 considered in Ext.P7 and that the claims had been negatived. However, it is to be noticed that the respondents do not claim that the promotions already given to respondents 4 to 13 were reviewed in compliance with the directions of this Court. 8. I have heard counsel for the petitioner and the standing counsel appearing for the respondents. 9. It is to be noticed that the directions of this Court quoted above are very clear and categoric to the effect that not only the claims of the petitioners are to be considered but the promotions given to respondents 4 to 13 are to be reviewed as well. Ext.P7 does not indicate that any review of the promotions given to respondents 4 to 13 was done. There is no point in considering the claims of the petitioners without a proper review of the promotions given to respondents 4 to 13 without any justification, as has been found by this Court. Further, even the Director of Municipal Administration who has filed an affidavit before this Court on 13.2.2008 in O.P.5183/2003 has admitted that the directions of this Court in Exts.P4 and P5 have not been complied with. In the above situation, it is clear that the contention in the counter affidavit that Ext.P7 has been issued in compliance with the directions of this Court cannot be accepted. W.P(C) No: 16913/2003 6 10. In view of the above Ext.P7 is set aside. The first respondent shall consider the entire issue afresh in accordance with the directions contained in Exts.P4 and P5 judgments and shall pass fresh orders in compliance with the said directions, within a period of two months from the date of receipt of a copy of this judgment. The above shall be done after affording an opportunity of being heard to the petitioner and other interested parties if any. It is submitted that one of the petitioners has since retired. In the above circumstances, if the said petitioner is found eligible for the promotion that is claimed, he shall be given notional promotion and he shall also be entitled to all consequential benefits therefrom. The Original Petition is allowed as indicated above. K. SURENDRA MOHAN Judge jj W.P(C) No: 16913/2003 7 K. SURENDRA MOHAN, J. --------------------------------- W.P(C) NO: 16913 OF 2003-L ---------------------------------- JUDGMENT Dated: 20th February, 2009.