IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 15TH JANUARY 2009 / 25TH POUSHA 1930 WP(C).No. 8396 of 2004(Y) ------------------------------------ PETITIONER(S): ------------------------ 1. P.VASU, S/O.PADMANABHAN, AGED 60, INDIRA BHAVAN, K.K.GARDENS, INDIRA NAGAR, PEROORKKADA. 2. K.P.PAVITHRAN, S/O.POOVAN, AGED 57, PADMA DHAYA, MANGULAM LANE, T.K.D.ROAD, PATTOM TRIVANDRUM. 3. V.SIVARAMAN, S/O.VELUMPAN, AGED 65, PANAMOOTTIL, KRISHNA PURAM, P.O. OACHIRA. 4. J.C.BABU S/O.C.M. JACOB,AGED 68, BABU NIVAS, SREECHITRA NAGAR P.O. THYCAUD, TRIVANDRUM. 5. R.LEELA, WIFE OF D.RAVIKUMAR, AGED 57, RAVIKIRAN, PEROORKADA, NEMOM P.O. TRIVANDRUM. - 20. 6. K.K.JANAMMA, D/O.K.KUNJACHAN, AGED 55, MELOTTUVILAKAM, EDAKODE, NEMOM P.O. TRIVANDRUM-20. 7. N.KESAVAN, S/O.NARAYANAN, AGED 60 TC 55/739, ATTISSERY, NEW HOUSE, NEERAMONKARA, KAIMANAM P.O. TRIVANDRUM - 40. 8. C.RAMAKRISHNA, S/O.K.CHELLAPPAN, AGED 57 T.C. 76/1375,. SUSMITHA BHAVAN, ANANTHAPURAM LANE, KOONAMOOLA, PILLA P.O. 9. K.K.GOPALAN, S/O.KESAVAN, AGED 60 VATTUVILA VEEDU, KOOVALASSERI P.O. TRIVANDRUM. 10. P.KOCHURAMAN, S/O.PACHAN, AGED 58 T.C.NO.25/3420, UPPALAM ROAD, TRIVANDRUM - 1. W.P.9C0 NO.8396/2004 11. A.KRISHNA KUTTY, S/O.R. AYYAPPAN, AGED 60 SANU MANDIRAM, KARAYALATTUKNAM, VENCODE P.O. TRIVANDRUM. 12. B.M.SHOBHI, W/I.CHANRASEN, AGED 58 YEARS SOJA BHAVAN, NEETHI NAGAR, 147, PEROORKKADA, TRIVANDRUM. 13. G.DIVAKARAN, SPECIAL OFFICER, REVENUE (RTD), S/O.LATE K.GOPALAN, AGED 57, KERALA STATE ELECTRICITY BOARD, RESIDING AT MUKKOOTTUSSERY, T.C. XI/1495, PAROTTUKONAM, NALANCHIRA P.O. TRIVANDRUM- 15 14. A.S.THANKASWAMY, S/O.V.K.APPICHERUKKAN, AGED 59 YEARS, UPASANA, T.C.3/2595(1) MARAPPALAM ROAD, PATTOM P.O. TRIVANDRUM - 4. BY ADV. SRI.G.S.REGHUNATH RESPONDENT(S): ------------------------ 1. THE KERALA STATE ELECTRICITY BOARD, REP. BY ITS SECRETARY. 2. THE CHIEF ENGINEER (HRM) KERALA STATE ELECTRICITY BOARD, TRIVANDRUM. 3. THE CHIEF INTERNAL AUDITOR, KERALA STATE ELECTRICITY BOARD, TRIVANDRUM. ADV. SRI.P.SANTHALINGAM, SC, KSEB FOR R1TO3 SRI.C.K.KARUNAKARAN, SC FOR KSEB FOR R THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.8396/2004 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE TABLE SHOWING THE PETITIONERS' DT. OF ENTRY IN THE SERVICE OF THE IST RESPONDENT, RESPECTIVE DATES OF PROMOTIONS, THE POSTS HELD BY THEM AND THE DATES OF THEIR RETIREMENT FROM SERVICE. P2:- COPY OF THE G.O.9,S0 NO.22/PD DT. 13.1.1972. P3:- COPY OF THE ORDER DT. 27.7.64 OF THE IST RESPONDENT. P4:- COPY OF THE B.O. NO. RL.I 27519/74 DT. 4.12.75. P5:- COPY OF THE JUDGMENT DT. 14.11.86 IN OP. NO.6464/82 OF THIS HONOURABLE COURT. P6:- COPY OF THE ORDER DT. 21.4.88 OF THE CHIEF ENGINEER (ELECTRICITY), TRIVANDRUM. P7:- COPY OF THE B.O. NO. 786/01 (LAS IV) 12175/92 DT. 31.3.2001. P8:- COPY OF THE B.O. NO.1276/93 DT. 2.7.93. P9:- COPY OF THE G.O.(P) NO.101/80/167/FIN. DT. 30.1.80 ISSUED BY THE GOVERNMENT. P10:- COPY OF THE ORDER NO.EB/GR.I/22/2001 DT. 13.9.01. P11:- COPY OF THE ORDER BO. NO.2278/2001(LA)S) IV/12175/92 DT. 16.11.01. P12:- COPY OF THE ORDER NO.EB/GR.I/87/2001 DT. 5.12.01. P13:- COPY OF THE ORDER NO.EB/GR.I/26/2001 DT. 28.9.01. P14:- COPY OF THE ORDER B.O.NO.1852/001/LAS. IV/12175/92 DT. 6.9.01. P15:- COPY OF THE ORDER NO.EB/GR.I/38/2001 DT. 3.10.01. P16:- COPY OF THE ORDER NO.EB/GR.I/55/2001 DT. 22.10.01. P17:- COPY OF THE ORDER NO.EB/GR.I /41/2001 DT. 6.10.01. P18:- COPY OF THE ORDER NO.EB/GR.I/21/2001 DT.12.9.01. P19:- COPY OF THE ORDER NO.EB/GR.I 78/2001 DT. 24.11.01. P20:- COPY OF THE ORDER NO.EB/GR.I/18/01 DT. 13.9.01. P21:- COPY OF THE ORDER NO.EB/GR.I/25/01 DT. 12.9.01. P22:- COPY OF THE ORDER NO.EB/GR.I/20/2001 DT. 12.9.01. W.P.(C) NO.8396/2004 P23:- COPY OF THE ORDER B.O. NO.732/93 (PS I/2003/92 ) TRVM. DT. 21.4.93. P24:- COPY OF THE ORDER B.O. NO.PSI. 1533/89-7(71) DT. 12.11.90. P25:- COPY OF THE ORDER BO. NO.2138/95 (ESTT. I/3857/95) DT. 5.10.95. P26:- COPY OF THE REPRESENTATION DT. 19.10.01 SUBMITTED BY THE 10TH PETITIONER BEFORE THE IST RESPONDENT. P26(a):- COPY OF THE REPRESENTATION DT. 10.10.01 SUBMITTED BY THE 13TH PETITIONER BEFORE THE IST RESPONDENT. P27:- COPY OF THE G.O.(P) NO.545/01 DT. 19.3.01. /TRUE COPY/ P.A. TO JUDGE tss S.SIRI JAGAN, J. ================== W.P(C).No.8396 of 2004 ================== Dated this the 15th day of January, 2009 J U D G M E N T The petitioners are retired employees of the Kerala State Electricity Board. The petitioners belong to Scheduled Caste. The Kerala State and Subordinate Service Rules have been adopted by the KSEB. The Government had issued orders under the K.S.&.S.S.R. exempting SC/ST employees from obtaining test qualification for the purpose of promotion. The said benefit was not extended to the employees of the KSEB originally. Later, by Ext.P4 order dated 4.12.1975, the KSEB exempted the SC/ST employees already in service on or before 13.1.1972 from passing all tests for promotion in the Board with retrospective effect. But such exemption was given only with effect from the dated of Ext.P4, viz. 4.12.1975. Some of the employees challenged the same by fling O.P.No. 6264/1982, in which Ext.P5 judgment was passed by a learned Single Judge of this Court, in which quoting from a Division Bench decision of this Court in W.A.No.18/1976, it was found that the petitioners in that original petition were entitled to promotion with effect from the date when the Government issued notification granting exemption. Pursuant thereto, Ext.P6 order was passed wherein three employees were given retrospective promotion exempting them from acquisition of test 2 qualification. They were also given monetary benefits for the retrospective promotion. However, some other employees who were also given similar retrospective promotion by Ext.P7 were denied monetary benefits and only notional fixation of pay was granted. The petitioners, who are Scheduled Caste employees of the Board, sought similar benefits as in Exts.P5 and P6. After several representations, ultimately, Exts.P10 to P22 orders were passed wherein the petitioners were given retrospective promotion exempting them from test qualification with effect from an anterior date in accordance with their seniority in the seniority list in their respective posts. However, monetary benefits were restricted from a subsequent date. Although the petitioners are stated to have filed representations, nothing tangible has come out and therefore, the petitioners have filed this writ petition seeking the following reliefs: “A) That all records relating to Exts.P7 and P10 to P22 be called to this Hon'ble Court and a writ of mandamus or other order passed directing the respondents to allow the petitioners to exercise re- options in respective pay revisions as mentioned under para 17 of this Writ Petition to enable the petitioners to get the entire monitory (sic) benefits arising out of Exts.P10 to P22 orders granting retrospective promotion to the petitioners. B) That the petitioners' right to exercise re-option to obtain the monetary benefits flowing from Exts.P10 to P22 orders granting retrospective promotions to the petitioners as shown in Exts.P10 to P22 be declared. C) That all records relating to Exts.P7 and P10 to P22 be called to this Hon'ble Court and a writ of certiorari or other order passed quashing Exts.P7 and P10 to P22 to the extent it gives only notional fixation in the posts to which promotions are ordered and direct the respondents 1 to 3 to give all monetary benefits due to 3 the petitioners on the basis of the retrospective promotions given to them as if they were holding the respective posts detailed in Ext.P1 from the dates mentioned therein taking Exts.P23 to P25 into account, where ever they apply.” 2. A counter affidavit has been filed disputing the claim of the petitioners. According to the Board, the employees involved in Ext.P6 stand on a different footing in so far as they had actually passed the test although subsequently. The Board heavily relies on Ext.P7 order whereby monetary benefits on account of similar retrospective promotion had been denied to other employees. 3. I have considered the rival contentions in detail. 4. I am not satisfied with the explanation given by the Board for treating the employees involved in Ext.P6 and the petitioners or others involved in Ext.P7 differently. All these employees are Scheduled Caste employees who were given retrospective promotion excepting them from acquiring test qualification retrospectively. The fact that some of them subsequently obtained test qualification does not in any way alter the position. Both sets of employees were given promotion with retrospective effect granting exemption from test qualification retrospectively. Although the counsel for the Board relies on Rule 23(a) of Part I of KSR, I do not think that after having not done what they should have done earlier they can take advantage of their mistake by relying on Rule 23(a). 5. All the same, I am not inclined to exercise my discretionary 4 jurisdiction in favour of the petitioners on account of unexplained delay and laches. Exts.P10 to P22 orders were passed in 2001. The petitioners were perfectly aware of their rights even at the time of issuing Exts.P10 to P22. Nothing prevented the petitioners from seeking relief within a reasonable period. Although the petitioners claimed that they had filed representations in that regard, they did not do anything to get their grievances redressed until 9.4.2004, when they filed this writ petition. In the decision of the Supreme Court in Rabindranath Bose and Others v. Union of India and Others (AIR 1970 SC 470) it was held that in respect of the subject matter of a writ petition representations were being received by the Government all the time was not sufficient for explaining the delay in approaching the Court and that there is a limit to the time which can be considered reasonable for making representations. The petitioners slept over their rights for a long period of 3 years. In the above circumstances, this writ petition is dismissed on account of explained delay and laches. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge 5