IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 3RD OCTOBER 2008 / 11TH ASWINA 1930 WP(C).No. 21063 of 2008(G) -------------------------- PETITIONER(S): --------------- 1. ANIL NINA, AGED 36 YEARS, S/O V.T. NINAN, ELLILAVUNKAL HOUSE, PANPADI, PRESENTLY WORKING US SENIOR ASSISTANT, PAMPADI SECTION KSEB. 2. BENNY P.C., AGED 47 YEARS, S/O P.J. CLEMENT, PUTHENPADATH HOUSE, CHETHI P.O., CHERTHALA, PRESENTLY WORKING US SENIOR ASSISTANT, ELECTRICAL DIVISION, KSEB, CHERTHALA. BY ADV. SRI.GEORGE SEBASTIAN RESPONDENT(S): --------------- 1. THE KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM. 2. THE CHIEF ENGINEER (HRM), VYDHUTHI BHAVAN, K.S.E.B, THIRUVANANTHAPURAM. BY STANDING COUNSEL FOR KSEB SRI.K.S.ANIL. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.N.RAVINDRAN, J. ------------------------------- W.P.(C) No.21063 of 2008 ------------------------------- Dated this the 3rd October, 2008. J U D G M E N T The petitioners are presently working as Senior Assistants in the Kerala State Electricity Board. They entered service as Junior Assistant/Cashier in the year 2001. They were advised as per advice memos dated, 4.9.2001. When the order of appointment did not follow, they filed O.P.No.37567 of 2001 in this Court. The second petitioner was the 7th petitioner and the first petitioner was the 24th petitioner therein. By Ext.P2 judgment delivered on 8.1.2002, a learned Single Judge of this Court disposed of the said writ petition with a direction to the Board and its officers to give a suitable posting to the petitioners within two months from the date of receipt of a copy of the judgment. Aggrieved by Ext.P2, the Board filed W.A.No.2049 of 2002. Thereafter, petitioners were provisionally appointed as per Ext.P3 appointment order dated, 31.12.2002, along with 27 others. The petitioners are Sl.Nos.24 and 7 respectively in the W.P.(C) No.21063 of 2008 2 list appended to Ext.P3. Ext.P3 itself states that the appointment of the 29 persons named therein is provisional and subject to the decision in W.A.No.2049 of 2002. Pursuant to Ext.P3, the petitioners joined duty on 18.9.2002. After they joined service, other candidates advised by the Kerala Public Service Commission, who were not parties to O.P.No.37567 of 2001, moved this Court by filing O.P.No.2103 of 2002. By Ext.P4 judgment delivered on 27.2.2003, this Court directed the Board and its Officers to make appointments strictly in accordance with the seniority in the advice list. In Ext.P4, this Court directed as follows:- 3. The appointment/retrenchment of the candidates advised for appointment shall be made strictly in accordance with the seniority in the advice list. If there are dearth of vacancies, the juniors in the advice list shall be retrenched irrespective of whether their appointments were made pursuant to the direction of this court or not. In case there is further reduction in vacancies pursuant to the restructuring of K.S.E.B., the Board will free to retrench the surplus juniors. Needless to say, re-appointment shall be made in accordance with the seniority as and when vacancies arise. The first respondent shall W.P.(C) No.21063 of 2008 3 ascertain the number of vacancies available in the cadre of Junior Assistant/Cashier and the seniors in the advice list shall be retained against those vacancies. This, the first respondent shall do within one month from the date of receipt of a copy of this judgment.” 2. Pursuant to Ext.P4 judgment, the petitioners were retrenched from service as per Ext.P5 order dated, 22.7.2003. They were thereafter re-appointed based on their seniority in the advice list as Cashier on 3.3.2004 and 13.9.2004 respectively. Thereafter, by Ext.P7 judgment delivered on 10.3.2006, W.A.No.2049 of 2002 filed by the Board from Ext.P2 judgment, was allowed and Ext.P2 judgment was set aside. 3. Long after he was re-appointed, the first petitioner filed Ext.P8 representation claiming service benefits for the period he worked before retrenchment. The said request was rejected by Ext.P9 letter dated, 26.9.2007. Ext.P9 is under challenge in this writ petition, wherein the petitioners have prayed for the following reliefs:- W.P.(C) No.21063 of 2008 4 1. To issue a writ of certiorari calling for the originals of Ext.P9 and to quash the same. 2. Declare that the petitioners are entitled to count their prior service under the respondents before retrenchment for the purpose of all service benefits and increments. 3. To issue a writ of mandamus, order or directions to the respondents to count the prior service of the petitioners before retrenchment for the purpose of increments and all other service benefits. 4. In view of Ext.P4 and P7 judgments, the petitioners cannot claim any benefit following their provisional appointment as Cashier made as per Ext.P3. Ext.P3 discloses that the appointment of the petitioners and 27 others was purely provisional and subject to the decision in W.A.No.2049 of 2002 filed by the Board from Ext.P2 judgment. By Ext.P7 judgment delivered in W.A.No.2049 of 2002, Ext.P2 judgment was set aside. The petitioners were appointed as per Ext.P3 on a provisional basis following the directions issued by this Court in W.P.(C) No.21063 of 2008 5 Ext.P2 judgment. Ext.P3 specifically states that appointments made thereunder are purely provisional and subject to the decision in W.A.No.2049 of 2002. By Ext.P4 judgment, this Court directed the Board to make appointments strictly in accordance with the seniority in the advice list. In view of the directions issued by this Court in Ext.P4 judgment, the petitioners were retrenched for the reason that they had been appointed over looking the seniority of others. Thus, the petitioners were thrown out of service on 22.7.2003. They were later re-appointed based on their seniority in the advice list. The claim made by the petitioners is for service benefits for the period from 18.9.2002 to 22.7.2003. Since W.A.No.2049 of 2002 was allowed and Ext.P2 judgment was set aside in appeal, the petitioners cannot claim any right pursuant to Ext.P3. Further, if as claimed by the petitioners, their earlier spell of service from 18.9.2002 to 22.7.2003 is reckoned for the purpose of grant of increments, it will lead to a situation where they will draw higher salary than their seniors, thereby giving rise to claims from seniors for W.P.(C) No.21063 of 2008 6 stepping up of the pay drawn by them. This will lead to unnecessary financial burden on the Board which is already finding it difficult to meet its various obligations. In this state of affairs, I find no merit in the claim made by the petitioners in this writ petition or against the challenge made to Ext.P9. The petitioners who were wrongly appointed over looking the seniority of others in the advice list cannot claim or be granted any benefit for their earlier spell of service from 18.9.2002 to 22.7.2003. The writ petition is in my considered opinion misconceived and without any merit. Accordingly, the writ petition fails, and is dismissed in-limine. P.N.RAVINDRAN, JUDGE nj.