IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 4TH AUGUST 2009 / 13TH SRAVANA 1931 WA.No. 1314 of 2009() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.10602/2006 Dated 10/02/2009 .................... APPELLANT(S): RESPONDENTS: -------------------------- 1. KERALA STATE ELECTRICITY BOARD, VAIDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY. 2. CHIEF ENGINEER (HRM), VAIDYUTHI BHAVANAM THIRUVANANTHAPURAM. BY ADV. SRI. ASOK M.CHERIYAN, SC, KSEB RESPONDENTS : PETITIONERS: -------------------------- 1. P.K.NAZEER, LINEMAN GRADE I, ELECTRICAL SECTION, AROOR. * ADDL.R2 K.VIJAYAN CHETTIAR, OVERSEER, ELECTRICAL SECTION, ALAPPUZHA TOWN. * ADDL.R3. D.MURALEEDHARA, OVERSEER ELECTRICAL SECTION, CHERTHALA WEST. * ADDL.R4 M.P.SOMASUNDARAM, OVERSEER ELECTRICAL SUB STATION, CHELLANAM. * ADDL.R5 SABU MATHEW, OVERSEER ELECTRICAL SECTION, MANNAR, ALAPPUZHA DISTRICT. * ADDL.R6 G.ANILKUMAR, OVERSEER ELECTRICAL SECTION, NOORANAD, ALAPPUZHA DISTRICT * ADDL.R7 V.P.MOHANAN, OVERSEER ELECTRICAL SECTION, KALLUSSERY * ADDL.R8 K.P.NANDAKUMAR, OVERSEER(ELECTRICAL) KSEB ELECTRICAL SUB STATION MANCOMBU, ALAPPUZHA DISTRICT (ADDL.R2 TO R8 IMPLEADED AS PER ORDER DT 28.7.09 IN IA.698/09) ADV. SRI.KRB.KAIMAL, SENIOR ADVOCATE FOR ADDL.R2-8 SRI.B.UNNIKRISHNA KAIMAL FOR ADDL.R2-8 SRI.D.SREEKUMAR FOR R1 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 04/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ. ```````````````````````````````````````````````````` W.A. No. 1314 OF 2009 ```````````````````````````````````````````````````` Dated this the 4th day of August, 2009 J U D G M E N T Balakrishnan Nair, J. The respondents in the writ petition are the appellants. The 1st respondent herein was the writ petitioner. The brief facts of the case are the following:- On 7.2.2003, 284 vacancies arose in the cadre of Meter Reader under the K.S.E.B. By Ext.P2, applications from eligible candidates were called for to fill up 25% of those vacancies, reserved for internal candidates as per the Rule governing appointment to the post of Meter Reader. Persons working under the KSE Board, but drawing scale of pay less than that of Meter Reader and who have prescribed qualifications, are entitled to be considered for appointment by transfer as Meter Reader. Pursuant to Ext.P2 notification, a panel was prepared and promotions were ordered as per Ext.P4. The writ petitioner submitted that he is qualified for the post but, ignoring his claim, his juniors were included in Ext.P4. So, the writ petition was filed seeking appropriate reliefs. 2. The KSEB took up the defence that on the date of WA.1314/09 : 2 : occurrence of vacancies, ie., 7.2.2003, the writ petitioner was not qualified. Therefore, his claim was not considered. The learned Single Judge took the view that in Ext.P2 notification there was no such cut of date for considering eligibility for promotion and it was held that the petitioner also is eligible. Accordingly, reliefs were granted in the writ petition. The aggrieved respondents in the writ petition have preferred this appeal. 3. Mr.Asok M. Cheriyan appearing for the appellants submitted that promotions in the KSEB are governed by Rule 28 of KS & SSR as the said Rule had been adopted by the KSEB by virtue of its regulation making power under Section 79 of the Electricity Supply Act, 1948. So, the claim of the incumbent has to be considered with reference to the date of occurrence of vacancies. So, even if Ext.P2 notification is silent, the statutory Rules will govern the field. Therefore, the decision of the learned Single Judge is liable to be reversed, it is submitted. Sri.D.Sreekumar, learned counsel for the 1st respondent/ writ petitioner, submitted that since no cut of date was notified in Ext.P2, everyone qualified on the last date for submission of applications as per Ext.P2 were entitled to be considered for promotion. Learned counsel for the additional respondents also supported the above submission. 4. The KS & SSR have been adopted by the KSEB by virtue of its regulation making power under section 79(c) of the Electricity Supply WA.1314/09 : 3 : Act, 1948. As per the Rules contained in KS & SSR governing promotion, the claim of the incumbent in the feeder category has to be considered with reference to the date of occurrence of vacancy. There are several decisions of the Apex court and of this court that even if there is a delay from the part of the appointing authority to order promotion, the claim has to be considered with reference to the date of occurrence of vacancy. 5. In view of the said legal position, we are of the view that the stand of the KSEB has to be upheld. The non inclusion of any cut of date in Ext.P2 cannot have the effect of nullifying the statutory rights of the incumbents in the feeder category. In the result, the writ appeal is allowed. Judgment under appeal is reversed and the writ petition is dismissed. Sd/- (K.BALAKRISHNAN NAIR, JUDGE) Sd/- (C.T.RAVIKUMAR, JUDGE) aks // True Copy // P.A. to Judge