IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 10TH FEBRUARY 2009 / 21ST MAGHA 1930 WP(C).No. 10602 of 2006(K) ----------------------------------------- PETITIONER(S): ------------------------ P.K.NAZEER, LINEMAN GRADE I, ELECTRICAL SECTION, AROOR. BY ADV.MR.D.SOMASUNDARAM RESPONDENT(S): --------------------------- 1. CHIEF ENGINEER (HRM), VIDUTHY BHAVAN, THIRUVANANTHAPURAM. 2. KERALA STATE ELECTRICITY BOARD, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY. R1 & R2 BY ADV.MR ASOK M.CHERIYAN, SC, KSEB THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.10602/2006 K APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PROVISIONAL NATIONAL TRADE CERTIFICATE DTD. 6/04/2004 ISSUED BY SECRETARY, STATE COUNCIL FOR VOCATIONAL TRAINING. EXT.P2: COYP OF THE CIRCULAR NO.EB/4/110/2004 DTD. 16/09/2004 ISSUED BY THE 2ND RESPONDENT. EXT.P3: COPY OF THE APPLICATION OF THE PETITIONER DTD. 28/09/2004 AND THE EXECUTIVE ENGINEER ELECTRICAL DIVISION CHERTHALA HAS FORWARDED PETITIONERS APPLICATION DTD. 6/10/2004. EXT.P4: COPY OF THE PROMOTION AND POSTING ORDERS OF 260 PERSONS ISSUED BY THE 2ND RESPONDENT. EXT.P5: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DTD. 29/01/2005. EXT.P6: COPY OF THE JUDGMENT DTD. 22/03/2005 IN WP(C) NO.9587 OF 2005(N) OF THIS HON'BLE COURT. EXT.P7: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DTD. 11/01/2006. EXT.P8: COPY OF THE COVERING LETTER DTD. 16/03/2006 ISSUED TO THE ASST.EXE.ENGINEER, AROOR AND THE PROCEEDINGS NO.EB/LAW/ W.P.9587/05 DTD. 8/07/2005 OF THE KSEB. EXT.P9: COPY OF THE CIRCULAR DTD. 8/09/1999 OF THE KSEB, 1ST RESPONDENT. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss P.N.RAVINDRAN, J. ====================================== W.P.(C)No.10602 of 2006 ====================================== Dated this the 10th day of February 2009 JUDGMENT The petitioner is presently working as Lineman Grade I in the Kerala State Electricity Board, herein after referred to as the 'Board' for short. He has filed this Writ Petition aggrieved by Ext.P8 order dated 8.7.2005 issued by the first respondent, declining his request for promotion to the category of Meter Reader. The brief facts of the case are as follows:- 2. The petitioner entered service as Electricity worker on 7.12.1995. In course of time, he was promoted to the category of Lineman Grade I. The petitioner possesses besides a pass in the Pre-degree examination, a pass in the Trade Test conducted by the Industrial Training Department of the Government of Kerala in the trade of Wireman. Ext.P1 is the certificate issued in that regard by the Industrial Training Department of the Government of Kerala. 3. By Ext.P2 circular dated 16.9.2004, the first respondent invited applications from employees of the Board, who have a pass in the 8th standard or its equivalent and a pass in the National Trade Certificate in Electrician/Wireman/Electronics Trade or the other technical qualifications stipulated therein and are drawing pay below the scale of pay of Meter Reader, for promotion to the category of Meter Reader in the 25% quota set apart for in service candidates. The last date stipulated in Ext.P2 for submission of applications was 15.10.2004. W.P.(C)No.10602 of 2006 2 4. Pursuant to Ext.P2, the petitioner submitted Ext.P3 application dated 28.9.2004 which was duly certified by his superior officer and forwarded to the first respondent. However, by Ext.P4 order passed on 15.1.2005, 260 employees of the Board including persons junior to the petitioner in the category of Lineman Grade I were promoted to the category of Meter Reader in the 25% quota earmarked for in service candidates. The pleadings disclose that by yet another order passed on 22.3.2005, another set of 24 persons were also likewise promoted to the category of Meter Reader. Aggrieved by Ext.P4, the petitioner submitted Ext.P5 representation before the first respondent wherein he claimed promotion to the category of Meter Reader. He thereafter filed W.P.(C)No.9587 of 2005 in this Court. By Ext.P6 judgment delivered on 22.3.2005, this Court disposed of W.P.(C)No.9587 of 2005 with a direction to the first respondent herein (the second respondent in W.P.(C)No.9587 of 2005) to consider Ext.P5 representation and pass orders thereon within six weeks from the date of receipt of a copy of the judgment. The petitioner thereafter submitted Ext.P7 representation dated 11.1.2006 to the first respondent. The Executive Engineer of the Board in the Electrical Division at Cherthala where the petitioner was working, thereafter sent Ext.P8 letter dated 16.3.2006 along with a copy of order dated 8.7.2005 issued by the first respondent W.P.(C)No.10602 of 2006 3 whereby the petitioner's request for promotion to the category of Meter Reader pursuant to Ext.P2 circular was declined. The petitioner has in this Writ Petition challenged Ext.P8 and prayed for the following reliefs:- i) To issue writ of certiorari or appropriate writ direction or order calling for records leading to Ext.P8 proceedings of the first respondent and quash the same. ii) To issue a writ of mandamus or appropriate writ, direction or order directing the respondent to provide appointment to the petitioner on the basis of his Ext.P3 to the post of Meter Reader. iii) To declare that the reason stated by the Ist respondent in Ext.P8 to the effect that persons who had the qualification on 7.2.2003 are eligible for appointment is illegal. 5. The petitioner contends that the stand taken by the respondents in Ext.P8, is arbitrary. The petitioner further contends that as no cut off date had been fixed in Ext.P2 circular, all employees of the Board who were qualified on the date on which the circular was issued, are entitled to be promoted, based on their seniority to the 25% quota earmarked for in service candidates holding posts carrying a scale of pay below the scale of pay of Meter Reader. The respondents have entered appearance and filed a counter affidavit contending inter alia that 284 vacancies of Meter Readers arose when 284 Meter Readers were promoted to the next higher category of Overseer (Electrical), that the said promotions were ordered on 7.2.2003, that W.P.(C)No.10602 of 2006 4 thereupon Ext.P2 circular dated 16.9.2004 was issued to fill up the said 284 vacancies of Meter Readers, that the said 284 vacancies were filled up by passing Ext.P4 order dated 15.1.2005 and yet another order dated 22.3.2005, that only employees of the Board who possessed the qualifications prescribed in Ext.P2 as on 7.2.2003 were considered for promotion and that as the petitioner passed the National Trade Test only after 7.2.2003, he was not qualified to be promoted along with his juniors. 6. I have heard Sri.D.Somasundaram, the learned counsel appearing for the petitioner and Sri.Ashok M.Cheriyan, the learned counsel appearing for the Board. The learned counsel for the petitioner contended that if promotions have to be effected with reference to eligibility as on a cut off date, the Board used to set out the cut off date in the circular/notification inviting applications, and that in Ext.P9 circular inviting applications from employees holding posts below the category of Junior Assistant and Cashier for promotion to the category of Junior Assistant/Cashier, the Board had stipulated that only those employees who entered service on or before 14.7.1995 are eligible to apply. The learned counsel for the petitioner further contended that the stand taken by the Board in Ext.P8 and in the counter affidavit cannot be sustained for the reason that in Ext.P2 circular, the Board had not stipulated that only those employees who W.P.(C)No.10602 of 2006 5 were qualified as on 7.2.2003 are eligible to apply. The learned counsel further contended that neither in Ext.P8 nor in the counter affidavit the respondents have set out the actual number of vacancies of Meter Readers, apart from merely stating that 284 vacancies of Meter Readers had arisen on 7.2.2003 as a result of the promotion of 284 Meter Readers as Overseers (Electrical) and that vacancies other than the said 284 vacancies existed against which the petitioner ought to have been promoted. The learned counsel for the petitioner also contended that employees of the Board who were drawing pay below the scale of pay applicable to Meter Readers are entitled to 25% of the total number of posts of Meter Readers and therefore his claim for promotion was illegally rejected. Per contra, Sri.Ashok M.Cherian the learned standing counsel for the Board contended that as the petitioner has no case that no one who was not qualified as on 7.2.2003 has been promoted, the challenge to Ext.P8 must fail. 7. I have considered the submissions made at the Bar by the learned counsel appearing on either side. It is not in dispute that 25% of the total number of posts of Meter Readers in the service of the Board is earmarked to be filled up by promoting employees of the Board drawing pay in a scale of pay lower to the scale of pay of Meter Readers. The petitioner admittedly falls in that category. He also possesses the qualifications prescribed for the post of Meter Reader W.P.(C)No.10602 of 2006 6 which has been set out in Ext.P2 in detail. The short question that falls for determination in this Writ Petition is whether the respondents were right in declining to promote the petitioner for the reason that he had not passed the National Trade Certificate as on 7.2.2003. 8. As an adjudication of the said question involves a reference to Ext.P2 circular, I shall for the sake of convenience, extract the relevant portion of Ext.P2 circular. "All employees below the pay scale of Meter Readers and possessing the above requisite qualification for promotion as Meter Reader are directed to submit the completely filled up application form before the controlling officer along with attested copies of certificates sufficiently early so as to reach this office on or before 15.10.2004. Field officers are directed to ensure that this circular is brought to the notice of all concerned, so as to give no room for complaints. The custodians of Service Book should ensure that the details furnished are correct by affixing their signature beneath the details in the proforma in form appended. Completely filled up proformas duly certified by the Head of Office and attested copies of certificates may be forwarded to this office so as to reach on or before 15.10.2004. Please acknowledge receipt of this circular" 9. Ext.P2 discloses that the first respondent had called upon all heads of offices to obtain and forward applications from candidates possessing the qualifications prescribed therein and who are drawing pay in the scale of pay below the scale of pay of Meter Reader. Ext.P2 circular does not set out the number of vacancies against which promotions are to be effected. Nor does it stipulate that only those W.P.(C)No.10602 of 2006 7 persons who possess the qualifications prescribed for the post of Meter Reader as on 7.2.2003 are eligible to apply. Therefore the petitioner is right in contending that he was eligible to apply. On a plain reading of Ext.P2, I am therefore satisfied that the petitioner was eligible to be considered for promotion. However, the respondents have declined to promote him stating that though his juniors were promoted, they were promoted because they possessed the qualifications as on 7.2.2003 while the petitioner acquired the qualification only later. The respondents have no case that the petitioner was not qualified as on the date of Ext.P2 circular. They have also no case that other than the 284 vacancies of Meter Readers which were filled up as per Ext.P4 order dated 15.1.2005 and the subsequent order dated 22.3.2005, no other vacancy of Meter Reader in the 25% quota earmarked for in service candidates existed. A reading of Ext.P8 and the counter affidavit discloses that the respondents have denied promotion to the petitioner on the short ground that he was not qualified as on 7.2.2003. On the materials on record and having regard to the terms and stipulations in Ext.P2, I am of the opinion that the stand taken by the respondents cannot be sustained. The respondents have also not stated that other applicants who are similarly placed as the petitioner were also denied promotion, adopting the stand taken in the counter affidavit and in Ext.P8. W.P.(C)No.10602 of 2006 8 10. In the result, I quash Order No.EB/Law/W.P.9587/05 dated 8.7.2005 issued by the first respondent and direct the respondents to promote the petitioner to the category of Meter Reader with effect from the date on which his immediate juniors in the category of Lineman Grade I were promoted. The petitioner will be entitled to all consequential benefits including seniority and emoluments. The Writ Petition is allowed as above. No costs. P.N.RAVINDRAN, JUDGE css/