IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 15TH JANUARY 2010 / 25TH POUSHA 1931 WA.No. 68 of 2010() ------------------- AGAINST THE JUDGMENT IN WPC.36741/2009 Dated 18/12/2009 .................... APPELLANT(S): PETITIONERS ------------------------- 1. K.DIVAKARAN, RETD. DIVISIONAL ACCOUNTANT K.S.E.BOARD, KOYAKKEEL HOUSE, ADUTHILA, PAYANGADI P.O., KANNUR DISTRICT. 2. V.P.ANIYAN, DIVISIONAL ACCOUNTANT, ELECTRICAL DIVISION, K.S.E.BOARD,THIRURANGADI, MALAPPURAM DISTRICT. 3. V.GEETHA,DIVISIONAL ACCOUNTANT, BUILDINGS AND STORES DIVISION, K.S.E.BOARD, ANGAMALI. 4. S.SURESH KUMAR, DIVISIONAL ACCOUNTANT, CIVIL DIVISION, K.S.E.BOARD, VYDYUTHI BHAVAN,THIRUVANANTHAPURAM. BY ADV. SRI.ELVIN PETER P.J. RESPONDENT(S): RESPONDENTS --------------- 1. STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, POWER DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. KERALA STATE ELECTRICITY BOARD, REP. BY ITS SECRETARY, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 3. THE CHIEF ENGINEER(HRM), K.S.E.BOARD, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 4. SRI.BALACHANDRAN PILLAI, ASST. ACCOUNTS OFFICER, K.S.E.BOARD, REGIONAL AUDIT OFFICE, MANJERI. 5. SYAMALA P.P., ASST. ACCOUNTS OFFICER, K.S.E.BOARD, OFFICE OF THE CHIEF ENGINEER (DISTRIBUTION-NORTH), KOZHIKODE. 6. MANJULA M.V., ASST.ACCOUNTS OFFICER, K.S.E.BOARD, REGIONAL AUDIT OFFICE, KANNUR. 7. JAGADANAND P.V., ASST. ACCOUNTS OFFICER, K.S.E.BOARD, ELECTRICAL CIRCLE, KANNUR. 8. AUGUSTINE M., ASST. ACCOUNTS OFFICER, K.S.E.BOARD, ELECTRICAL CIRCLE, THIRUVANANTHAPURAM (RURAL). 9. SURESH M., ASST. ACCOUNTS OFFICER, K.S.E.BOARD, REGIONAL AUDIT OFFICE, KOZHIKODE. 10. PRADEEP KUMAR, ASST. ACCOUNTS OFFICER,K.S.E.BOARD, REGIONAL AUDIT OFFICE, KASARAGODE. 11. BEENA L., ASST. ACCOUNTS OFFICER, K.S.E.BOARD, OFFICE OF THE CHIEF ENGINEER (DISTRIBUTION-SOUTH),POWER HOUSE, THIRUVANANTHAPURAM. 12. SREEKANTAN NAIR P., ASST. ACCOUNTS OFFICER, K.S.E.BOARD, OFFICE OF THE C.I.A., VYDYUTHI BHAVAN,THIRUVANANTHAPURAM. 13. CHITRALEKHA I., ASST. ACCOUNTS OFFICER, K.S.E.BOARD, REGIONAL AUDIT OFFICE, POWER HOUSE, THIRUVANANTHAPURAM. 14. SANKARARAMAKRISHNAN M., ASST. ACCOUNTS OFFICER, K.S.E.BOARD, ELECTRICAL CIRCLE, THIRUR. 15. SANTHOSH KUMAR K., ASST. ACCOUNTS OFFICER, K.S.E.BOARD, REGIONAL AUDIT OFFICE, MANJERI. 16. SASIKUMAR S., ASST. ACCOUNTS OFFICER, K.S.E.BOARD, ELECTRICAL CIRCLE, VADAKARA. 17. VENUGOPALAN P., ASST. ACCOUNTS OFFICER, K.S.E.BOARD, ELECTRICAL CIRCLE, SREEKANTAPURAM. 18. HARIKUMAR G., ASST. ACCOUNTS OFFICER, K.S.E.BOARD, REGIONAL AUDIT OFFICE, KOTTAYAM. 19. PRASANNAKUMAR G., ASST. ACCOUNTS OFFICER, K.S.E.BOARD, ELECTRICAL CIRCLE, KOZHIKODE. ADV.SRI.ASHOK M.CHERIAN, STANDING COUNSEL, K.S.E.B -R2,R3 GOVT.PLEADER SMT.R.BINDU-R1 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 15/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. --------------------------------------------- W.A. NO. 68 OF 2010 --------------------------------------------- Dated this the 15th day of January, 2010 JUDGMENT Balakrishnan Nair, J. The writ petitioners are the appellants. They were working as Senior Assistants under the Kerala State Electricity Board (for short “the K.S.E.B.”). They have two channels of promotion, one to the post of Divisional Accountant and the other to the post of Senior Superintendent. The appellants were promoted to the post of Senior Superintendents as per Ext.P3 dated 20.12.2003 and Ext.P4 dated 30.7.2004. But, they claimed promotion to the post of Divisional Accountants. The said claim not having been accepted by the K.S.E.B., they approached this Court by filing W.P.(C) No.5629 of 2007. This Court by Ext.P5 judgment dated 4.7.2007 held that the provisional promotion as Senior Superintendents will not stand in the way of the petitioners claiming promotion to the post of Divisional Accountant, based on their lien in the post of Senior Assistant. In obedience to the said direction, the appellants/petitioners were promoted to the post of Divisional Accountants by Ext.P6 order dated W.A. NO. 68/2010 2 7.4.2008. The appellants submit that though they thought that they will be given promotion to the post of Divisional Accountant with retrospective effect, their expectations did come true and to their dismay, their juniors in the cadre of Senior Assistant were promoted, as per Ext.P7 dated 31.12.2008, to the post of Assistant Accounts Officer, which is in a higher grade compared to the post of Divisional Accountant. Claiming promotion to the post of Divisional Accountant with effect from 2003, the appellants filed W.P.(C) No.14304 of 2008 before this Court, which was later dismissed as withdrawn. Later, the first appellant filed Ext.P10 representation before the Chief Engineer requesting that he may be reverted and further promoted as Senior Superintendent. The said representation was rejected by the Chief Engineer by Ext.P11, stating that once he is promoted as Divisional Accountant, his name would be deleted from the gradation list of Senior Superintendent. The first appellant and others filed representations against Ext.P11 before the Board of the K.S.E.B., but those representations were rejected by the Board as per Ext.P19. Therefore, the Writ Petition was filed, challenging condition Nos.4, 5 and 6 in Ext.P6 as also Ext.P19. 2. The learned Single Judge dismissed the Writ Petition holding that the writ petitioners accepted the promotion as per Ext.P6 with open eyes. W.A. NO. 68/2010 3 After accepting the conditions contained in Ext.P6, now they cannot turn round and claim promotion to the post of Senior Superintendent. The learned Single Judge took note of the fact that there was delay on the part of the appellants/petitioners in raising their objections to Ext.P6. The appellants attack the above findings of the learned Single Judge in this appeal. 3. The learned counsel for the appellants pointed out that there was no delay, as found by the learned Single Judge. Ext.P6 order was passed on 7.4.2008 and Ext.P10 representation was filed by the first appellant on 29.11.2008. In the case of others, the representations were filed in early 2009. So, there is no delay, it is submitted. The learned counsel also submitted that the acceptance of the conditions in Ext.P6 being contrary to the provisions of the Kerala State and Subordinate Services Rules, the same cannot be enforced and the Board is bound to follow the statutory provisions. The appellants have a lien in the post of Senior Assistants as long as they are not confirmed in the post of Divisional Accountant. The official respondents do not have a case that the appellants were confirmed in the post of Divisional Accounts and, therefore, rejection of their claim for reversion to the parent cadre and thereafter for promotion from that post to the post of Senior Superintendent W.A. NO. 68/2010 4 was wrongly rejected. The learned counsel also submitted that the Chief Engineer is not an authority competent to impose the objectionable conditions in Ext.P6. 4. We notice that the appellants bargained for promotion to the post of Divisional Accountants, dissatisfied with their promotion to the post of Senior Superintendents. They have approached this Court claiming promotion to the post of Divisional Accountants. That claim was upheld by this Court by Ext.P5 judgment and only in obedience to that judgment, promotions were ordered as per Ext.P6. In Ext.P6, the Chief Engineer imposed the following conditions: “4. Change of cadre from Divisional Accountant to that of Senior Superintendent and vice versa will not be allowed. 5. Those promotees who accept this promotion will have to give a written undertaking to the effect that “I accept the promotion to the cadre of Divisional Accountant and I will not claim for any benefits and seniority that may avail by those juniors who opted to continue in the channel of Senior Superintendent and above”. 6. Those who do not accept the promotion to the cadre of Divisional Accountant will also have to give a written undertaking to the effect that “I will not accept the promotion to the cadre of Divisional Accountant and I will not claim for any seniority/benefits that may avail by those W.A. NO. 68/2010 5 juniors who opted to continue in the cadre of Divisional Accountant”.” 5. The appellants/petitioners accepted the above conditions in Ext,.P6, gave the necessary undertaking and joined duty as Divisional Accountants. Now, they want to go back. Certain rights conferred on the employees could be relinquished by them. Rule 38 of the Kerala State and Subordinate Services Rules enables them to do so. It is common ground that the provisions of the Kerala State and Subordinate Services Rules are applicable to the employees of the K.S.E.B., as those rules were adopted by the K.S.E.B. invoking its regulation making power. Condition Nos.4, 5 and 6 in Ext.P6 were accepted by the appellants and their rights under the Rules, arising out of their lien in the post of Senior Assistant were thus relinquished. Since relinquishment is permissible under Rule 38 of the Kerala State and Subordinate Services Rules, the present contention that the relinquishment has to be ignored because of the other provisions of the Kerala State and Subordinate Services Rules cannot be accepted. The contention of the appellants that the Chief Engineer is not competent to impose such conditions also cannot be accepted. According to the appellants, the K.S.E.B. has delegated the power of appointment of Divisional Accountants to the Chairman of the Board and the Chairman has, in turn, delegated that power to the Chief Engineer. In this case, the W.A. NO. 68/2010 6 Chief Engineer has ordered promotion and the appellants have accepted the same. Even assuming that there is some defect in the power of the Chief Engineer to make appointments, the appointments made by him are saved by the defacto doctrine. He has made the appointments under the colour of authority and he has no personal interest in the matter. Therefore, the said contention also cannot be accepted. We further notice that there is no delay on the part of the appellants in staking their claim. We are of the view that the claim of the appellants regarding absence of delay, in view of our findings on the other grounds taken by the appellants, is of no consequence. The appellants, who clamoured for promotion as Divisional Accountants and got promotion on the conditions imposed by the Chief Engineer, cannot turn round and attack the conditions imposed and claim promotion in a different channel. In the result, the Writ Appeal fails and it is accordingly dismissed. (K. BALAKRISHNAN NAIR) JUDGE (C.T. RAVIKUMAR) JUDGE sp/ W.A. NO. 68/2010 7 K. BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. W.A.NO.68/2010 JUDGMENT 15th January, 2010