IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 28TH MAY 2009 / 7TH JYAISHTA 1931 WA.No. 447 of 2005(E) -------------------------------- AGAINST THE JUDGEMENT IN O.P.NO.6010/2003 DATED 19/01/2005 .................... APPELLANT/ 4TH RESPONDENT: ------------------------------------------------ JOHNSON FERNANDEZ .L., S/O.LEONS FERNANDEZ, AGED 41, OVERSEER (ELECTRICAL), ELECTRICAL SECTION, KILIKOLLOOR NOW WORKING AT OVERSEER(ELECTRICAL)TCMS ELECTRICAL CIRCLE,KOLLAM, RESIDING AT MOLLY VILASAM, KERALAPURAM, VELLIMON P.O. BY ADV. MR.S.SREEKUMAR. RESPONDENTS/PETITIONERS- RESPONDENTS 1 TO 3: ------------------------------------------------------------------------------- 1. M.K.SREENARAYANAN ELAYATH, S/O.M.D.KESAVAN ELAYATH, METER READER, ELECTRICAL SECTION, KERALA STATE ELECTRICITY BOARD, TRIPUNITHURA. 2. V.K.SASIDHARAN, METER READER, ELECTRICAL SECTION, KERALA STATE ELECTRICITY BOARD, CHAVAI. 3. O.K.PAVIKUTTY, METER READER, ELECTRICAL SECTION, KERALA STATE ELECTRICITY BOARD, TRIPUNITHURA. W.A. NO. 447/2005-E: 4. P.RADHAKRISHNAN NAIR, METER READER, ELECTRICAL SECTION, KERALA STATE ELECTRICITY BOARD, SREEKARYAM, THIRUVANANTHAPURAM. 5. V.B. MURALEEDHARAN, METER RADER, ELECTRICAL SECTION, KERALA STATE ELECTRICITY BOARD, ALUVA. 6. BIJURAJ C., METER RADER, ELECTRICAL SECTION, KERALA STATE ELECTRICITY BOARD, VAZHAKULAM. 7. T.DAS, METER READER, ELECTRICAL SECTION, KERALA STATE ELECTRICITY BOARD, POOJAPPURA, THIRUVANANTHAPURAM. 8. THE KERALA STATE ELECTRICITY BOARD, VAAIDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM, REP. BY ITS SECRETARY. 9. THE CHIEF ENGINEER(HRM), THE KERALA STATE ELECTRICITY BOARD, VAIDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 10. UDAYAKUMAR G., OVERSEER(ELECTRICAL)ELECTRICAL SECTION, KERALA STATE ELECTRICITY BOARD, VATTIYOORKAVU, THIRUVANANTHAPURAM. *ADDL. RESPONDENTS 11 & 12 IMPLEADED: 11. M.K. SUNNY, LINEMAN GRADE I, KERALA STATE ELECTRICITY BOARD, 110 KV SUB STATION, KALOOR, KOCHI – 682 017. W.A. NO. 447/2005-E: 12. K.N. SASIDHARAN PILLAI, METER READER, ELECTRICAL SECTION, KERALA STATE ELECTRICITY BOARD, NEDUMKANDAM, IDUKKI DISTRICT. *ADDITIONAL RESPONDENTS NO.11 AND NO.12 IMPLEADED VIDE ORDER DTD. 08/04/05 IN I.A. NO. 1244/05. R8 TO R10 BY ADV. MR. A.SUDHI VASUDEVAN, SC, KSEB, MR.C.K.KARUNAKARAN, SC FOR KSEB, MR.K.P.DANDAPANI, SENIOR ADVOCATE, R11 & R12 BY ADV. MR.PEEYUS A.KOTTAM, ADV. MR.SANTHOSH MATHEW, ADV. MR.SATHISH NINAN. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 28/05/2009, ALONG WITH W.A. NO. 455/2005 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. K.BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ. ----------------------------------------- W.A. NOS. 447, 454, 455, 558, 663, 804 & 1336/2005 ----------------------------------------- Dated 28th May, 2009. JUDGMENT Balakrishnan Nair, J. These Writ Appeals are filed against the common judgment rendered by the learned Single Judge in O.P.No.6010/2003 and connected cases dated 19.1.2005. The point that arose for decision was whether the vacancies in the post of Overseer (Electrical) set apart for appointment of employees of the Kerala State Electricity Board having the prescribed qualification for direct recruitment to that post and who are in the same or lower time scales of pay compared to that of Overseer (Electrical), should be filled up going by their length of service under the Board. According to the appellants, persons with the prescribed qualification working in different lower posts under the Board should be appointed in the aforementioned quota, based on their length of service under the Board. A person with longer service, even if he is working as a Scavenger, should be preferred over a person with W.A.NO.447/05 & CONN.CASES 2 lesser service, even if he is working in the immediate lower category post below Overseer, namely, Meter Reader. 2. The skeletal facts necessary for the disposal of the Writ Appeals are the following: We are referring to the exhibits in W.A.No.455/2005, unless otherwise specified. The settlement concluded between the management and the workmen of the K.S.E.B on 25.11.1978 made certain provisions regarding appointment to the post of Lineman (presently re- designated as Overseer). The relevant portion of the settlement comes under Clause 5 of Article VIII (sub-heading II. Executive, A. Electrical). The said clause reads as follows: “5. In a view of the loss of promotion opportunities arising from enhancement of work-norms, it is agreed subject to the concurrence of Public Service Commission that: (a) Lineman: All the vacancies of Lineman that will occur immediately on the implementation of the revised work-norms will be filled up by promotion, in relaxation of recruitment rules, in the following manner: (i) 60% by promotion from the cadre of Senior Assistant Lineman. (ii) 40% by promotion from workmen of and below the pay scales of lineman qualified for direct recruitment as Lineman according to length of service. Preference will be given to ITI Certificate Holders according to length of service. Vacancies arising thereafter will be filled up in the following manner: W.A.NO.447/05 & CONN.CASES 3 (i) 40% promotion from Senior Assistant Lineman. (ii) 10% by appointment through Public Service Commission from among qualified Board Employees. Demand of the Unions for change in the mode of appointment will be further discussed. (iii) 50% by direct recruitment through P.S.C.” Taking into account the loss of promotion chances as a result of upward revision of work-norms, it was decided that the vacancies of Lineman that may arise immediately and those which may arise in future, will be filled up in the manner indicated in the above quoted portion of the settlement. 3. The next settlement was concluded between the management and the workmen on 28.7.1986. As per the said settlement, it was resolved to integrate the category of Lineman (Rs.675 -1240) with the category of Second Grade Overseer (Rs.765 – 1330) with effect from 1.8.1986. It was decided to re-name the integrated category as Overseer (Electrical). It was provided that Line Assistant will be the feeder category for promotion to that post and the ratio between qualified hands and unqualified hands shall be 60 : 40. Qualified hands means employees having the qualification for direct recruitment as Overseer and working in grades equal or lower to that of Overseer. Unqualified hands means persons in the feeder category who W.A.NO.447/05 & CONN.CASES 4 claim promotion based on seniority in that category. Later, the Board moved the Government by addressing Ext.P15 communication, seeking approval of the Government for the integration of the two categories mentioned above and also for re-designation of the integrated category as Overseer (Electrical), apart from fixation of qualification and method of appointment to the re-designated post. 4. The next settlement between the management and the workmen concerning appointment to the post of Overseer (Electrical) was concluded in 1995. As per the long term settlement dated 2.8.1995, the method of appointment to the post of Overseer (Electrical) was further modified. The relevant clause is Clause 9 under Article VII (B. Executive Staff). The said clause reads as follows: “9. The existing ratio of 60 : 40 between qualified and unqualified hands of lower categories for promotion to the posts of Overseer (Ele.) will be revised as 40 : 60. Out of the 40% earmarked for qualified hands 10% vacancies will be reserved for persons with ITI (Non-electrical) and 5% vacancies will be reserved for persons with a pass in 8th standard and 5 years field experience.” The interpretation and implementation of the above clause is the subject- matter of the dispute raised in these appeals. The feeder category for promotion to the post of Overseer (Electrical) is Line Assistant. In view of the above settlement, 60% of the vacancies will be filled up strictly based W.A.NO.447/05 & CONN.CASES 5 on seniority in the feeder category, irrespective of whether the incumbents are qualified or not. That quota, as mentioned earlier, is described as the quota for unqualified hands. The quota for qualified hands is meant to be filled up by persons in the Board's service, who are having the prescribed qualification for direct recruitment to the post of Overseer (Electrical). Further, they should be drawing pay in the scale of pay equal or lower to that of Overseer (Electrical) also. 40% of the vacancies are set apart for such persons. As per the 1995 settlement, out of those 40% vacancies, 10% is reserved for persons with ITI (non-electrical) qualification and 5% for persons with five years' field experience and also a pass in the 8th standard. So, the remaining vacancies will come to 25%. The appellants claimed that the said 25% vacancies should be filled up from the qualified hands mentioned above with reference to their length of service under the Board. It means, a Scavenger, who is having ITI (Electrical) or equivalent qualification and 10 years' service under the Board will be preferred over a Meter Reader, who is occupying the immediate lower grade below the post of Overseer (Electrical) and 9 year's service. The above demand of the appellants were upheld by the Board and it issued Ext.P13 order, filling up the vacancies in the cadre of Overseer (Electrical) under the aforementioned 25% quota, strictly going by the length of service of the incumbents under W.A.NO.447/05 & CONN.CASES 6 the Board. Challenging Ext.P13, the contesting party respondents in these appeals filed the Original Petitions/Writ Petitions. The learned Single Judge upheld the contentions of the writ petitioners and quashed Ext.P13. It was ordered to promote the qualified hands in the higher grade among the lower categories, that is persons in the immediate lower grade to the post of Overseer (Electrical), first. Only after exhausting such persons, persons in the next higher scale of pay shall be considered. In other words, the learned Single Judge ordered to make promotions, following the principles contained in Rule 28(b)(i), Notes (vi) and (vii) of Part II of the Kerala State & Subordinate Services Rules (K.S. & S.S.R.) Aggrieved by the above direction of the learned Single Judge, these appeals are filed. 5. We heard the learned senior counsel Sri.K.R.B.Kaimal and M/s.S.Sreekumar, M.V.Thamban & S.Ramesh Babu for the appellants and M/s.T.G. Rajendran, Dr.K.P.Satheesan, Elvin Peter, A.Sudhi Vasudevan, Sasidharan Chempazhanthiyil, K.Praveen Kumar and Mathews J.Nedumpara for the party respondents. 6. The learned counsel for the appellants submitted that the relevant clause of 1978 settlement specifically provides that 40% of the vacancies set apart for qualified hands should be filled up, giving preference to I.T.I certificate holders, according to their length of service under the Board. The W.A.NO.447/05 & CONN.CASES 7 said stipulation was not modified by the subsequent settlements. In the case of all other categories of employees of the Board where there is a provision for appointing qualified hands under the Board in the quota set apart for them, the criteria for appointment is the length of service under the Board. So, in the light of the 1978 settlement and the practice hitherto followed by the Board, the learned counsel for the appellants submitted that the Board has rightly issued Ext.P13. 7. The learned counsel for the respondents on the other hand, submitted that the stipulation contained in the 1978 settlement was only a one-time measure to fill up the vacancies, which arose at the relevant time, as a result of revision of work norms. Thereafter, nowhere it has been stated in the subsequent settlements or Board orders that appointment of qualified hands in the Board's service to the post of Overseer (Electrical) will be based on their length of service under the Board. They also pointed out that the 1978 settlement itself clarifies how the vacancies arising subsequently should be filled up. The methods provided therein do not speak about the length of service under the Board. Further, such an interpretation will produce unjust results also. A person working in the post of Meter Reader is likely to be superseded by a Scavenger, on the ground that the latter has got longer service under the Board. Therefore, the learned Single Judge W.A.NO.447/05 & CONN.CASES 8 correctly interfered with Ext.P13, it is submitted. 8. We considered the rival submissions made at the Bar and perused the materials on record. We find that the 1978 settlement provides for filling up the vacancies in the cadre of Lineman in the ratio of 60 : 40 between promotees from the cadre of Senior Assistant Lineman and promotees from the workmen with the same or lower scale of pay compared to Lineman, who are qualified for direct recruitment as Lineman, promoted according to length of service. The second method of appointment is described as appointment by promotion of qualified hands. It appears, length of service was to be reckoned as a one-time measure. This is evident from the subsequent clause in the settlement dealing with vacancies arising in future. 40% of the future vacancies were to be filled up by promotion of Senior Assistant Lineman, 50% vacancies were to be filled up by P.S.C hands and the remaining 10% through P.S.C from among the qualified hands under the Board's service. So, for filling up future vacancies, there is no direct promotion from qualified hands under the Board's service. Appointment of qualified hands under the Board's service was reduced to 10% and the same was to be made through P.S.C only. So, the contention that the stipulation regarding length of service for appointment of qualified hands, contained in the 1978 settlement, survived and the same was not W.A.NO.447/05 & CONN.CASES 9 modified in the subsequent settlements, cannot be accepted. The said stipulation did not survive, even under the 1978 settlement, for filling up of future vacancies. Going by the conditions concerning appointment to the post of Overseer (Electrical) in the 1986 and 1995 settlements, we find that no provision has been introduced for making appointment of qualified hands in the quota reserved for them with reference to their length of service. 9. So, in the absence of any norm based on the length of service, the Board should have followed the principles contained in Rule 28 of the K.S. & S.S.R. The relevant portion of which reads as follows: “28(b)(i) promotion and appointment by transfer according to merit and ability:- ................................................... Note:- (i) ....................................................................................... (vi) When there are more than one feeder category carrying different scales of pay, they shall be shown in separate lists and persons in a lower scale of pay shall be appointed only after appointing all persons on a higher scale of pay, unless the Special Rules prescribe a ratio or any special order of preference for each feeder category. (vii) When the posts in the feeder categories are on the same scale of pay and there is no fixed ratio, appointment shall be made in accordance with their seniority in the feeder category, the seniority being determined by the date of the order of first appointment to that particular category, class or grade.” Whether the said amendment introduced to the K.S. & S.S.R was adopted by the Board and whether those principles governing promotion by W.A.NO.447/05 & CONN.CASES 10 selection will apply to promotion according to seniority, etc., need not be gone into by us, in view of the decision of the Division Bench of this Court in W.A.No.789/1988 and connected cases dated 21.3.1991. In the said batch of cases, the Division Bench held that the principles under the above Rules will apply wherever more than one feeder category of posts are prescribed for promotion to a higher post. We are in full agreement with the view expressed by the Division Bench in W.A.No.789/1988 and connected cases. If length of service in the feeder category is taken as the criteria, in such cases, anomalous results may emerge, as pointed out by the learned Single Judge. In the result, we find no reason to interfere with the judgment of the learned Single Judge. Accordingly, these appeals are dismissed. No costs. K.BALAKRISHNAN NAIR, JUDGE. C.T.RAVIKUMAR, JUDGE. nm/ W.A.NO.447/05 & CONN.CASES 11