IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 28TH JULY 2009 / 6TH SRAVANA 1931 WP(C).No. 16916 of 2007(L) -------------------------- PETITIONER(S): --------------- C.G.AJI, OVERSEER (ELECTRICAL), ELECTRICAL SECTION, K.S.E.BOARD, PATTOMATTOM, ERNAKULAM DISTRICT. BY ADV. SRI.ELVIN PETER P.J. RESPONDENT(S): --------------- 1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDHYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 2. THE CHIEF ENGINEER (HRM), KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVAN, PATTOM,THIRUVANANTHAPURAM. SRI. ASOK M.CHERIYAN, SC, KSEB FOR R1 & R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No. 16916/07. APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE RELEVANT EXTRACT OF THE MEMORANDUM OF SETTLEMENT IN 1995. P2. COPY OF THE JUDGMENT IN O.P.No. 21479/2000 DTD.1.1.2002 OF THIS COURT. P3. COPY OF THE JUDGMENT DTD.27.11.2002 IN W.A.NO.536/2002. P4. COPY OF THE ORDER OF R2 DTD.7.2.2003. P5. COPY OF THE ORDER DTD.29.8.2000 BY THE BOARD. P6. COPY OF THE ORDER DTD.4.11.2006 OF R2. P7. COPY OF THE ORDER DTD.4.12.2004 OF R2. P8. COPY OF THE REPRESENTATION DTD.27.11.2006 BEFORE R2. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P(C).No.16916 of 2007 ================== Dated this the 28th day of July, 2009 J U D G M E N T The petitioner was appointed as an Electricity Worker in the Kerala State Electricity Board on 14.10.1988. By subsequent promotions, he became Junior Line Assistant on 11.12.1990 and Lineman Grade I in July 1997. The petitioner possessed the qualification of Diploma in Electrical Engineering. The next promotion post available to the petitioner was Overseer (Ele.). By clause B (9) of Article VII of Ext.P1 settlement, the existing ratio of 60:40 between the qualified and unqualified hands in the lower categories for promotion to the post of Overseer (Ele.) was revised as 40:60. However, all lower categories were not considered for promotion to the post of Overseer (Ele.) and the same was restricted to some categories alone. Some Junior Line Assistants approached this Court by filing O.P.No.21479/2000 claiming that all lower categories possessing qualifications are eligible for being considered for promotion as Overseer (Ele.). The claim of the petitioners in that original petition was upheld by this Court in Ext.P2 judgment in O.P.No. 21479/2000. By Ext.P3 judgment in W.A.No.536/2002, the Division Bench slightly modified Ext.P2 judgment and held that all eligible and qualified persons at the time of occurrence of vacancies should be considered W.P.C.16916/07 2 including the petitioners in the original petition as well as the appellants in the writ appeal, as per the rules. Pursuant thereto, the cases of all persons qualified as on the date of occurrence of vacancies were considered by the Electricity Board and by Ext.P4 order dated 7.2.2003, promoted the persons mentioned in Annexure to the said order as Overseer (Ele.) with effect from 15.11.1999. In the meanwhile, a settlement had been entered into between the KSEB and their employees on 11.8.2000. As per Article VII (B) 8 of the said settlement, all existing qualified Overseers (Ele.) as on the date of settlement will be promoted to the post of Sub Engineer (Ele.). In that clause it was also mentioned that thereafter the post of Overseer (Ele.) shall cease to be the feeder category for promotion to the post of Sub Engineer (Ele.) and the feeder category for promotion to the post of Sub Engineer (Ele.) would be Meter Readers. According to the petitioner, since, by Ext.P4, the petitioner was promoted retrospectively with notional effect from 15.11.1999, he should be deemed to be an Overseer (Ele.) existing as on the date of the settlement viz., 11.8.2000 and, therefore, by virtue of the said clause, the petitioner is entitled to be promoted as Sub Engineer (Ele.). Ext.P8 representation dated 27.11.2006 claiming such promotion having worked no response, the petitioner has filed this writ petition seeking the following reliefs: W.P.C.16916/07 3 “(a) issue a writ of mandamus or other appropriate writ, order or direction directing the respondents to give retrospective promotion to the petitioner as Sub Engineer (Ele.) with effect from 11.8.2000 with all consequential benefits. (b) declare that the petitioner is entitled to be promoted as Sub Engineer (Ele.) with effect from 11.8.2000. (c) issue a writ of mandamus or other appropriate writ, order or direction directing the respondents to give promotion to the petitioner as Sub Engineer (Ele.) with effect from 11.8.2000 and also grant him arrears of salary, seniority and other service benefits.” 2. A counter affidavit has been filed by the 2nd respondent, wherein the contention taken is that the settlement speaks of promotion of all existing Overseers (Ele.) as on the date of settlement. Since the petitioner became an Overseer (Ele.) only by Ext.P4 dated 7.2.2003, long after the date of settlement viz., 11.8.2000, he was not an existing Overseer (Ele.) as on the date of settlement and therefore, he cannot be promoted in accordance with the above clause in the settlement. They also take a contention that since the petitioner has not been promoted as Overseer (Ele.) from the post of Meter Reader, he is not eligible for promotion as Sub Engineer (Ele.). 3. I have considered the rival contentions in detail. 4. At the outset, I note that if the Electricity Board had considered the eligibility of the petitioner for promotion as Overseer (Ele.) at the right time in accordance with the settlement applicable, he would have been actually promoted actually as Overseer (Ele.) with effect from 15.11.1999. It was only because of the fault of the W.P.C.16916/07 4 respondents that he was not so promoted. It took a direction from this Court for the KSEB to consider all eligible persons including the petitioner for promotion to the post of Overseer (Ele.) and they found that the petitioner was actually eligible for promotion with effect from 15.11.1999. Therefore, it was not because of any fault on the part the petitioner that he did not become an existing Overseer (Ele.) as on 11.8.2000, although he was in fact entitled to be an Overseer (Ele.) as on 11.8.2000. Now the respondents are trying to take advantage of their own wrong-doing in not promoting the petitioner when he became actually entitled to be so promoted with effect from 15.11.1999. That cannot be permitted in law. On the petitioner being given his rightful promotion on 15.11.1999, all subsequent promotions would also have to be reviewed accordingly. If that is so reviewed, then the petitioner is eligible for the benefit of Article VII B (8) of Ext.P5 settlement. Consequently, the petitioner is entitled to be promoted to the post of Sub Engineer (Ele.), since he must be deemed to have been an existing Overseer (Ele.) as on 11.8.2000. Therefore, I hold that the petitioner is eligible to be promoted as Sub Engineer (Ele.) in accordance with Article VII B (8) of Ext.P5 settlement. Orders giving effect to the above declaration shall be passed by the respondents, as expeditiously as possible, at any rate, within one month from the date of receipt of a certified copy of this judgment. W.P.C.16916/07 5 However, since in Ext.P4 the petitioner was given only notional promotion and this writ petition was filed only on 1.6.2007, I hold that the petitioner should be given only notional promotion upto 1.6.2007. For the subsequent period, he will also be eligible for monetary benefits also. I further direct that in order to avoid any further difficulties to the Board, this relief shall be confined to the petitioner alone, who alone has approached this Court and not to others, even if similarly placed, since they have not chosen to agitate their claims in time. The writ petition is disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge