IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 2ND JANUARY 2009 / 12TH POUSHA 1930 OP.No. 7866 of 2003(J) ---------------------- PETITIONER(S): --------------- 1. K.K.PRASANNAN, DRIVER GRADE II, ELECTRICAL SECTION, KERALA STATE ELECTRICITY BOARD THRIKKAKKARA. 2. K.A.ABDUL SAMAD, DRIVER GRADE II, RELAY SUB DIVISION, KALAMASSERY. 3. C.V.VIJAYAN, DRIVER GRADE II, RELAY SUB DIVISION, PALLOM, KOTTAYAM. 4. JOSE M.K., DRIVER GRADE II, ELECTRICAL SUB DIVISION, PUTHENCRUZ. 5. A.R.RAJESH, DRIVER GRADE II, SYSTEM OPERATION CIRCLE, KALAMASSERY. BY ADV. SRI.S.RAMESH BABU RESPONDENT(S): --------------- 1. KERALA STATE ELECTRICITY BOARD REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM. 2. CHIEF ENGINEER (HRM), KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM. ADV. SRI.C.K.KARUNAKARAN, SC FOR KSEB FOR R1,2 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 2.1.2009 THE COURT ON 02/01/2009 DELIVERED THE FOLLOWING: O.P.No. 7866/03. APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE ORDER DTD.19.2.2002. P2. COPY OF THE RELEVANT EXTRACT OF SETTLEMENT DTD.25.11.78. P3. COPY OF THE -DO- DTD.2.8.95. P4. COPY OF THE LETTER DTD.4.3.2002. P5. COPY OF THE ORDER DTD.15.2.2003 IN CMP NO.45791/2002 IN O.P.NO.26891/2002. P6. COPY OF THE AFFIDAVIT OF THE RESPONDENT DATED 18.10.2003. P7. COPY OF THE ORDER DTD.14.10.2003. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== O.P.No. 7866 of 2003 ================== Dated this the 2nd day of January, 2009 J U D G M E N T The petitioners are drivers in the Kerala State Electricity Board. The service conditions of these drivers in respect of ratio of promotion are governed by Exts.P2 and P3 settlements. As per Ext.P2 settlement, a ratio of 4:3:1 was fixed among Drivers Drade II, Drivers Grade I and Senior Drivers. This ratio was revised as 2:1:1:1: among Drivers Grade II, Drivers Grade I, Special Grade Drivers Grade II and Special Grade Drivers Grade I. In accordane with the said ratio, by Ext.P1 dated 19.2.2002, 26 Drivers Grade II were promoted as Driver Grade I. However, by Ext.P4 order, Ext.P1 order was kept in abeyance till the issue was scrutinized by the Financial Advisor/Chief Internal Auditor. One of the persons included in Ext.P1 challenged the same by filing O.P.No.26891/2002, in which a learned Single Judge of this Court passed Ext.P5 order directing the Board to take a decision implementing Ext.P3 in the light of the relevant rules and orders, within two moths on production of a copy of that order. Subsequent thereto, Ext.P7 order was passed by which 11 Drivers Grade II were promoted as Driver Grade I. However, the petitioners were not included therein. In Ext.P7 it was stated that the petitioners herein could not be included in the list of promoted persons, since only 11 o.p.7866/03 2 persons were found eligible for ratio promotion and the 11 persons promoted were senior to the petitioners. The petitioners are now challenging Exts.P4 and P7 orders in this original petition. 2. A counter affidavit has been filed by the Board, in which the claims of the petitioners are controverted in paragraphs 8 to 10, thus: “8. I submit that an Affidavit stating the position has been filed in CCC 1023/2003. As per the Settlement provisions, the promotion is to be maintained in the ratio 2:1:1:1 in the cadre of Driver Gr.II, Driver Gr.I, Special Grade Driver Grade II and Special Grade Driver II. The promotions are sanctioned as per the sanctioned strength in the respective cadres from time to time. As per the revised sanctioned strength of Drivers as on 12.8.2003 was fixed as 595. Due to restructuring in the Board, the number of the posts of Drivers has been reduced from 743 to 289. The number of posts of Drivers has been enhanced to 595 in view of the Court direction to appoint the candidates advised by the PSC. The ratio to be maintained in each category is 2:1:1:1 i.e., 238:119:119:119. At present, the strength of Drivers in each category is Driver Gr.II-222, Driver Gr.I - 139, Special Grade Driver II - 129 and Special Grade Driver I - 78. On 01.04.2003, the strength of Drivers was 141, Special Gr.II-135, Driver Special Gr.I - 86. If the ratio promotions were effected on the working strength of 414, the ratio of promotees would be 165:83:83:83. But, when the ratio was applied on the revised cadre strength of 595, the number of promotees in each category have gone up (239:119:119:119). Therefore, it is evident that the Board has promoted excess persons than the actual requirement. The Petitioners claim for promotion will be considered according to the sanctioned strength fixed by the Board from time to time and based on their seniority. As per the Settlement provisions, it is mandatory for keeping the ratio correct as far as possible. 9. I submit that, therefore, in order to maintain the strength of 228:119:119:119, as per the ratio 41 Special Grade Driver II were promoted to Special Grade I, 31 Driver Grade I promoted as Special Gr.I and 11 Driver Grade II were promoted as Driver Gr.I. 10. I submit that the Petitioners were not included in the promotion order issued vide Proceedings No.EB4(c)/2003/(1)(2) & (3) o.p.7866/03 3 dated 14.10.2003 of the Chief Engineer (HRM) since they are junior to the eligible employees who were promoted. The orders were issued in accordance with the rules and regulations prevailing in the Board.” Therefore, according the Board, the petitioners are not entitled to any relief in this original petition. 3. I have considered the rival contentions in detail. 4. The petitioners would contend that the contention of the Board that the sanctioned strength of drivers was 595 is only with reference to 12.8.2003, whereas Ext.P1 order was passed as early as on 19.2.2002 on which date admittedly the sanctioned strength was 743. Therefore, even going by their own admission, the sanctioned strength was 743 at the time of Ext.P1 order, in which case the contention raised in the counter affidavit is totally unsustainable and the petitioners would also be entitled to be included in the promotion list to the post of Driver Grade I. It is relevant to note here that in the counter affidavit the Electricity Board themselves rely on the affidavit filed by them in CCC No.1023/2003 as the basis for their contentions. That affidavit has been produced by the petitioners as Ext.P6. In paragraph 8 of Ext.P6, the Board themselves specifically stated that the promotion order (which is Ext.P1 herein) was issued taking into consideration the sanctioned strength of drivers as on 1.1.2002, which was 743 at that time. Again in paragraph 9 thereof, they state that the sanctioned strength of drivers as on 12.8.2003 fixed as per the o.p.7866/03 4 Board's order dated 13.8.2003 is 595. Ext.P1 order is dated 19.2.2002. There is no contention anywhere by the Board to the effect that from 1.1.2002 to 19.2.2002 the sanctioned strength of Drivers was revised to 743 from 595. The only contention is that as on 12.8.2003 the sanctioned strength was 595. When promotion was considered on 1.1.2002, such consideration should have been on the basis of the sanctioned strength as on that date, which going by Ext.P6, must have been very near to 743 because the difference between 1.1.2002 and 19.2.2002 is barely one-and-a-half months. That being so, Exts.P4 and P7 orders are clearly unsustainable. Accordingly, they are quashed. The 1st respondent is directed to reconsider the eligibility for promotion of the petitioners as Grade I Drivers as on 19.2.2002 on the basis of the sanctioned strength as on that date. Orders in this regard shall be passed, as expeditiously as possible, at any rate, within two months from the date of receipt of a certified copy of this judgment. The original petition is disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge o.p.7866/03 5 S.SIRI JAGAN, J. =============== O.P.No. 7866 of 2003-J =============== J U D G M E N T 2nd January, 2009