IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 27TH AUGUST 2009 / 5TH BHADRA 1931 WP(C).No. 15854 of 2003(K) --------------------------------------- PETITIONER: ------------------- C.U.JAYASANKAR, SENIOR ASSISTANT, K.S.E.BOARD, OFFICE OF THE DEPUTY TAHSILDAR, LAND ACQUISITION FOR K.S.E.BOARD, KOTTAYAM. BY ADVS. MR.ELVIN PETER P.J., MR.S.RAMESH, MR.P.N.SANTHOSH, MR.S.D.ASOKAN, MR.NAVEEN.T. RESPONDENTS: ------------------------ 1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 2. THE CHIEF ENGINEER (H.R.M.) K.S.E.BOARD, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 3. S.A.SURESH KUMAR, SENIOR ASSISTANT, K.S.E.BOARD, PERSONNEL DEPARTMENT,VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. R1 TO R3 BY ADV. MR.C.K. KARUNAKARAN, SC, KSEB. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.15854/2003-K: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE CERTIFICATE NO. 16242/98 DT. 14/02/1998 ISSUED BY THE P.S.C. EXT.P.2: COPY OF THE CERTIFICATE NO. 16241/98 DT. 14/12/98 ISSUED BY THE PSC. EXT.P.3: COPY OF THE CIRCULAR NO. EB3 (B) 333/98. DT. 26/10/1998 ISSUED BY THE KSE BOARD. EXT.P.4: COPY OF THE COMMUNICATION DT. 14/12/1998 SENT BY THE R.1. EXT.P.4.A: COPY OF THE PROFORMA OF THE PETITIONER SENT ALONG WITH EXT.P.4. DTD. NIL. EXT.P.5: COPY OF THE REPRESENTATION DTD. 24/12/1998 SENT BY THE PETITIONER TO THE CHIEF ENGINEER. EXT.P.6: COPY OF THE ORDER NO. EB3 (A) 2222/98/ DTD. 26/12/1998 ISSUED BY THE KSE BOARD. EXT.P.7: COPY OF THE ORDER NO. EB3 (B)/333/99/ DTD. 15/01/1999 ISSUED BY THE KSE BOARD. EXT.P.8: COPY OF THE JUDGMENT DTD. 21ST NOVEMBER 2002 IN O.P. NO. 2205/1999 OF THIS HON. COURT. EXT.P.9: COPY OF THE ORDER NO. EB/LAW/OP 2205/99. DTD. 26/04/2003 ISSUED BY THE R.2. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. V.K.MOHANAN, J. ---------------------------------------- W.P.C. No.15854 OF 2003 ---------------------------------------- Dated, 27th day of August , 2009 JUDGMENT This is the second round litigation at the instance of the petitioner to get redressed his grievance, regarding the denied promotion. He challenges Ext.P9 order of the 2nd respondent, the Chief Engineer-HRM, KSE Board, Thiruvananthapuram, and also prayed to issue a writ of mandamus or any other appropriate writ, direction or order declaring that the petitioner is entitled to get promotion to the category of Senior Assistant in preference to the 3rd respondent and other juniors to the petitioner in the category of Junior Assistant/Cashier who were given promotion to the category of Senior Assistant in the vacancies arose on and after 7.11.98 and to that extent to modify Ext.P7 order. 2. The case of the petitioner is that on joining in the service of the Board as Junior Assistant/Cashier on 11.1.94 as per Ext.P3 circular dated 26.10.98 issued by the KSE Board, the Board directed the concerned authorities Wpc 15854/03 -:2:- to report the details of incumbents in the post of Junior Assistant/Cashier who have completed the required Accounts Test and Departmental test during the test conducted in December, 1997 as cited in Ext.P3, for the purpose of promotion to the cadre of Senior Assistant, and that the details so required must be reached in the office on or before 16.11.98. According to the petitioner, he had appeared in the Departmental test conducted in June 1998 and the result was declared on 7.11.98 and he received the certificate on 14.12.98. It is the further case of the petitioner that by Ext.P6 dated 26.12.98, 26 persons who were working as Senior Assistants were promoted to the post of Senior Superintendents. Thereafter as per Ext.P7 order dated 15.1.99, about 131 Junior Assistants/Cashiers were promoted to the post of Senior Assistants. But the petitioner’s name was not included in Ext.P7 and no promotion was given in his favour though he had fully qualified for promotion to the said post. According to the petitioner, when his promotion was denied, he preferred O.P.No.2205/99 before this Court Wpc 15854/03 -:3:- which was disposed of by judgment dated 21.10.2002 directing the Board to consider the representation filed by the petitioner. It is thus on the basis of such direction, Ext.P9 order was issued by the Board. It is the above order challenged in this writ petition. 3. According to the learned Counsel for the petitioner, the vacancies of Senior Assistants were occurred pursuant to Ext.P6 order dated 26.12.98. If that be so, while passing Ext.P7 order of promotion, the petitioner was fully qualified but his name was not considered whereas his juniors including 3rd respondent were given promotion. The learned Counsel invited my attention to Rule 28(bb) of part 2 of K.S. & S.S.R. Thus, according to the learned counsel, at the time of the vacancy occurred, the petitioner was qualified for promotion. 4. On the other hand, the Standing Counsel for KSEB submitted that as evidenced by Ext.P3, the proposal of the Board was to consider the qualified hands those who have passed the Departmental Test based upon the test which was conducted in the 12th month of 1997. According to the Wpc 15854/03 -:4:- Standing Counsel, at that time, the petitioner had not passed the test even according to the averments of the petitioner. Therefore, the petitioner is not entitled to get promotion as claimed by him. It is also pointed out that the petitioner was promoted to the subsequent vacancies as evidenced by Ext.P9. 5. I have carefully considered the contentions advanced by the counsel for the petitioner as well as the Standing Counsel for KSEB. Rule 28(bb) of Part II of K.S.& S.S.R reads: “(bb) Promotion which depends upon the passing of any examination.- Promotion in a service or class which depends upon the passing of any examination (General or Departmental) shall ordinarily be made with reference to the conditions existing at the time of occurrence of the vacancies and not with reference to those at the time when the question of promotion is taken up.” From a reading of the above provision, it can be seen that, the promotion in a service or class depends upon the passing of any examination shall ordinarily be made on the basis of the Wpc 15854/03 -:5:- conditions existing at the time of occurrence of the vacancies and not at the time when the question of promotion is taken up. So, the crucial question to be considered is whether the candidate acquired the requisite qualification at the time of falling of the vacancy. As per Ext.P6, only 26 persons were promoted to the post of Senior Superintendent in the cadre of Senior Assistants. But Ext.P7 shows that altogether 131 persons working in the post of Junior Assistants/Cashiers were promoted to the post Senior Assistants. So, it cannot be said that Ext.P7 order was issued promoting persons from the cadre of Junior Assistants/Cashiers to the vacancy which arose as a result of the promotion effected as per Ext.P6. But in Ext.P9, no details are given as to how and when the post of Senior Assistants occurred and what are the criterion adopted by the Board for effecting the promotion and the reason for fixing the test that conducted in 12/97. In this juncture it is to be noted that Ext.P9 order was issued in terms of the direction issued by this Court as per the judgment dated 21.11.2002 in O.P.No.2205/99. The Board Wpc 15854/03 -:6:- being a public undertaking, which is a semi governmental institution, is expected to pass order, exercising its jurisdiction and authority in accordance with generally accepted law, procedure and principles. The main contention of the petitioner which he highlighted in the writ petition which referred above, and the representation which produced in the said writ petition, is that his junior was promoted in spite of the fact that he being the senior and got sufficient qualification at the time of the vacancy occurred. But in Ext.P9, no such details and reasons are given in support of the finding of the Board, contained in Ext.P9. In the light of the above facts and circumstances, at this stage, I am of the view that without entering into the merits of the contention of the petitioner, the matter can be remitted back to the Board for fresh consideration and for passing fresh order in the light of the above observation. In the result, this writ petition is disposed of directing the Ist respondent Board to consider the grievance of the petitioner which highlighted in Ext.P5 representation Wpc 15854/03 -:7:- produced along with O.P.No.2205/99 after affording an opportunity of being heard to the petitioner including an ipportunity to file fresh representation, if so required , and the Board is directed to pass fresh orders within three months from the date of receipt of a copy of this judgment which will be produced by the petitioner. For the purpose of enabling the Board to pass fresh order, Ext.P9 is quashed. The writ petition is disposed of accordingly. V.K.MOHANAN, JUDGE kvm/- Wpc 15854/03 -:8:- V.K.MOHANAN, J. WPC .No. 15854/2003 JUDGMENT Dated:.27.8.2009.