IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 3RD APRIL 2009 / 13TH CHAITHRA 1931 WP(C).No. 17615 of 2007(V) -------------------------------------- PETITIONER(S): ---------------------- 1. S. JAYAKUMAR, OVERSEER (ELECTRICAL), ELECTRICAL SECTION, KERALA STATE ELECTRICITY BOARD, THYCAUD, THIRUVANANTHAPURAM. 2. CLIFTEN SIMON, OVERSEER (ELECTRICAL), KERALA STATE ELECTRICITY BOARD, TMR DIVISION, THIRUMALA. 3. L. SURESH KUMAR, OVERSEER (ELECTRICAL), ELECTRICAL SECTION, KERALA STATE ELECTRICITY BOARD, THIRUMALA. BY ADV. MR.M.AYYOOBUKHAN MR.K.JITHIN RESPONDENT(S): ------------------------ 1. THE KERALA STATE ELECTRICITY BOARD, REP.BY ITS SECRETARY, VAIDYUDHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 2. THE CHIEF ENGINEER (HRM), VAIDYUDHI BHAVAN, PATTOM PALACE, THIRUVANANTHAPURAM. 3. SATHEESH KUMAR.V., S/O.VELUKUTTY.K., SUB ENGINEER, KSEB, ELECTRICAL MAJOR SECTION, EDAVA. 4. S.RADHAKRISHNAN, S/O.SUBRAMANIAN POTTY, SUB ENGINEER, KSEB, ELECTRICAL MAJOR SECTION, EDAVA. 5. J. FRANKLIN JOSE, S/O.JUSUS, SUB ENGINEER, KSEB, ELECTRICAL MAJOR SECTION, EDAVA. WP(C).No. 17615 of 2007(V) 6. T.V. HARIKUMAR, S/O.THANKAPPAPANICKER, SUB ENGINEER, KSEB, ELECTRICAL CIRCLE, KOZHIKODE. 7. P. SUBHASHIDHAN, SUB ENGINEER, KSEB, ELECTRICAL CIRCLE, KOZHIKODE. 8. N.P. ULLAS KUMAR, SUB ENGINEER, KSEB, ELECTRICAL CIRCLE, KOZHIKODE. 9. K.K. HARIHARAN, SUB ENGINEER, KSEB, ELECTRICAL CIRCLE, VADAKARA, KOZHIKODE. 10. R. AJITH KUMAR, SUB ENGINEER, KSEB, METER READER SECTION, FORT, THIRUVANANTHAPURAM. R1 & R2 BY ADV. MR.K.S.ANIL, SC, KSEB R1 & R2 BY ADV. MR.ASOK M.CHERIYAN, SC, KSEB R1 & R2 BY ADV. MR.P.P. THAJUDEEN, SC, KSEB R7 TO R9 BY ADV. MR.T.G.RAJENDRAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 17615 of 2007(V) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE CIRCULAR BEARING NO.EB4/120(C/99) DATED 09/09/1999. EXT.P2: COPY OF THE JUDGMENT IN W.P.(C). NO. 21479/2000 DATED 01/01/2002. EXT.P3: COPY OF THE JUDGMENT IN W.A. NO. 536/2002 DATED 27/11/2002. EXT.P4: COPY OF THE ORDER NO.B.O.(CM)NO.161/2003(LAS.III/10891/2000) DATED 06/02/2003. EXT.P5: COPY OF THE GRADATION LIST OF THE OVERSEER DATED 01/01/2004. EXT.P6: COPY OF THE LONG TERM SETLEMENT 2000. EXT.P7: COPY OF THE REPRESENTATION SUBMITTED BY THE 1ST PETITIONER DATED 10/11/2006. EXT.P8: COPY OF THE REPRESENTATION SUBMITTED BY THE 2ND PETITIONER DATED 10/11/2006. EXT.P9: COPY OF THE REPRESENTATION SUBMITTD BY TH 3RD PETITIONER DATED 10/11/2006. EXT.P10: COPY OF THE ORDER BEARING NO.EB2/SE(ELE)/MR/2006/4 DATED 04/11/2006. EXT.P11: COPY OF THE JUDGMENT IN W.P.(C). NO. 33753/2006 DATED 19/12/2006. EXT.P12: COPY OF THE PROCEEDINGS NO.20169/2006 DATED 14/03/2007. EXT.P13: COPY OF THE ORDER BEARING NO.B.O.(FB)NO.1003/2007(LAS.III/19426/2006) DATED 27/04/2007 OF THE 1ST RESPONDENT. EXT.P14: COPY OF THE ORDER NO.B.O.NO.CPO/GL/88-89/(14) DATED 25/04/1989. EXT.P15: COPY OF THE ORDR BEARING B.O.NO.CPO/GL/88-89(35) DATED 25/09/1989. EXT.P16: COPY OF THE ORDER BEARING NO.B.O.PSI-84/88(47) DATED 29/10/1988. EXT.P17: COPY OF THE NEWS ITEM IN MALAYALA MANORAMA DAILY DATED 04/05/2007. EXT.P18: COPY OF THE BEARING NO.EB1(a)/AE(ELE)/158/2008 DATED 17/09/2008. EXT.P19: COPY OF THE NOTE BEARING NO.NIL DATED NIL OF THE 2ND RESPONDENT. EXT.P20: COPY OF THE ORDER NO.PSI/6717/2008 DATED 30/01/2009 OF THE 1ST RESPONDENT. EXT.P21: COPY OF THE RELEVANT NEWS ITEM PUBLISHED IN MANGALAM DAILY DATED 03/02/2009. WP(C).No. 17615 of 2007(V) EXT.P22: COPY OF THE ORDER BEARING EB2/S.E(ELE)TRAINEES/08-09 DATED 03/02/2009 OF THE 2ND RESPONDENT. EXT.P23: COPY OF THE NEWS PUBLISHED IN MANGALAM DAILY DATED 06/02/2009. RESPONDENT'S EXHIBITS: EXT.R1(a): COPY OF THE B.O. DATED 20/01/2006. EXT.R1(b): COPY OF THE B.O. DATED 07/02/2006. //TRUE COPY// P.S. TO JUDGE Rs/ T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 17615 of 2007, - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of April, 2009. JUDGMENT The petitioners are aggrieved by the denial of promotion to the post of Sub Engineers in the Kerala State Electricity Board. They are working in the cadre of Overseer (Electrical). They were initially appointed as Mazdoor (Electricity Worker) and joined duty on 17.4.1995, 20.4.1995 and 19.4.1995 respectively. They were later promoted as Lineman Grade II in the month of March 1999. 2. The second respondent as per Circular dated 9.9.1999 invited applications for appointment to the post of Overseer (Electrical). The post of Overseer (Electrical) was open to any employee having a pay scale lesser than that of the Overseer, subject to having the qualification either in ITI Electrician, Wireman, Electronics. 3. Accordingly, the petitioners applied for the post of Overseer (Electrical). The matter was kept pending for a long time without any further action on the part of the respondents. This resulted in filing of O.P.No.21470/2000 by the first petitioner along with 18 other employees. This was disposed of by Ext.P2 judgment directing the second respondent to consider the petitioners for appointment to the post of Overseer (Electrical) with reference to the date of occurrence of vacancies. WPC 17615/07 2 4. Two Meter Readers filed Writ Appeal No.536/2002 which was disposed of by Ext.P3 judgment directing the Board to consider all eligible and qualified persons at the time of occurrence of vacancies. Accordingly, they were promoted as Overseers (Electrical) with retrospective effect from 15.11.1999. 5. In the gradation list of Overseer (Electrical) as on 1.1.2004 the petitioners have been assigned rank Nos.4232, 4198 and 4234 respectively. The next promotion is to the post of Sub Engineer (Electrical) and the post of Overseer is a feeder category. Ext.P6 is the copy of the settlement dated 11.8.2000 executed between the Board and the Labour unions. Under the same, it was decided that the post of Meter Reader shall be considered as feeder category for promotion to the post of Sub Engineer (Electrical) and that all existing qualified Overseer (Electrical) as on the date of settlement will be promoted to the post of Sub Engineer (Electrical) and thereafter the qualified Meter Readers could be considered for promotion to the post of Sub Engineer (Electrical). It is submitted that violative of the above clause, the Board took steps to promote others and accordingly, voicing their concern in the matter, the petitioners submitted Exts.P7 to P9 representations. Thereafter, the Board by Ext.P10 order, promoted various persons numbering 259 and many of them are juniors to the petitioners WPC 17615/07 3 including the party respondents herein. The petitioners approached this court by filing writ petition No.33753/2006 which was disposed of directing the Board to consider the representations. But the same were rejected as per Ext.P12 without affording any opportunity to the petitioners to represent their case. The petitioners are also aggrieved by Ext.P22 order dated 3.2.2009 whereby 424 Meter Readers having three years experience, have been ordered to be accommodated in the post of Sub Engineer (Electrical). 6. Learned counsel for the petitioners relied upon clause 8 of Ext.P6 settlement which is in the following terms: “8. The post of Meter Readers shall be treated as the feeder category for promotion to the post of Sub Engineer (Ele.) against the 60% quota and the post of Overseer (Ele.) shall cease to be the feeder category to the post of Sub Engineer (Ele.) from the date of this settlement. All the existing qualified Overseers (Ele.) as on the date of the settlement will be promoted to the post of Sub Engineer (Ele.) and thereafter the qualified Meter Readers will be considered for promotion to the post of Sub Engineer (Ele.). 40% of the existing places of the Overseer (Ele.) will be shifted to Meter Reader and 40$ of the vacancies in the category of Meter Reader will be reserved for qualified in-service candidates. 25% of the Meter Reader post will be filled up by promoting qualified in-service candidates of and below the pay scale of Meter Reader. The method of appointment of Meter Reader will be modified as 60 : 40 between direct recruitment WPC 17615/07 4 and promotion from qualified in-service candidates, with the concurrence of the Kerala Public Service Commission. Vacancies arising hereafter in the post of Overseer (Ele.) will be filled up in the following manner: i) 90% by promotion from the post of Lineman Gr.I based on seniority. ii) 7% by promotion from persons with ITI (non-electrical) and Meter Readers who are not eligible for promotion for the post of Sub Engineer (Ele.) according to seniority. iii) 3% by promotion from persons with a pass in 8th standard and 5 years field experience according to seniority. It is submitted that all the existing qualified Overseers (Electrical) with reference to the date of settlement will have to be promoted to the post of Sub Engineers (Electrical). But in Ext.P12, while rejecting the representations, it is stated that only persons with five years experience as Overseer (Electrical) alone are entitled for promotion. It is pointed out that the juniors were granted promotion as they had a lien in the cadre of Meter Readers. As per clause 8 of Article VII B of the Long Term Settlement 2000, the feeder category for promotion to the cadre of Sub Engineer (Electrical) against 60% quota is Meter Reader and not Overseer (Electrical). 7. The first respondent, in the detailed counter affidavit filed, has WPC 17615/07 5 justified the action taken by them. While referring to the contentions raised by the petitioners in respect of the settlement, it is pointed out that going by the settlement, the post of Meter Reader shall be the feeder category for promotion to the post of Sub Engineer (Electrical) under 60% quota and the post of Overseer (Electrical) shall cease to be the feeder category to the post of Sub Engineer (Electrical) from the date of settlement, viz. 11.8.2000. Prior to the above settlement, the persons working as Overseer (Electrical) had to satisfy the educational qualifications, the certificate in the particular field and five years of experience in the cadre of Overseer (Electrical). 8. It is further pointed out that when the Long Term Settlement 2000 was implemented, it was found that a few qualified Meter Readers who got promotion to the level of Overseer (Electrical) and could not complete five years in the cadre of Overseer (Electrical) as on the date of Long Term Settlement, got entrapped in such a way that their total promotion prospects to the level of Sub Engineer (Electrical) and above are blocked. Many of the Meter Readers who were subsequently promoted as Overseers could not be considered for promotion to the post of Sub Engineer (Electrical) as per the provisions of the Long Term Settlement 2000 since they had not completed five years of service as overseers in the Board as on the date of settlement. Other anomalies are also pointed out in the counter affidavit. It WPC 17615/07 6 is further averred that all the trade unions who are parties to the settlement and other employees requested to reconsider the issue and accordingly, Ext.R1(a) order was passed by the Board. Therein, benefit has been granted to Overseers (Electrical) who were promoted and posted as Overseer (Electrical) from the grade of Meter Readers with effect from a date prior to the date of the Long Term Settlement, 2000 against 25% quota for Meter Readers, to the cadre of Sub Engineer (Electrical) subject to their seniority, qualification and eligibility as and when they complete five years of service in the grade of Overseers. As the petitioners are not appointed as Overseer (Electrical) from the cadre of Meter Reader, the benefit of the above orders are not extended to them. Thus, the promotion of juniors have been supported in the counter affidavit. 9. A reading of Ext.R1(a) gives the background of the dispute. Clearly, the bar of promotion/appointment of Overseers (Electrical) as Sub Engineers because of the particular clauses contained in the Long Term Settlement was the bone of contention between the various sections. A category of employees apart from the petitioners, were got entrapped without any avenues of promotion. On the basis of the complaints in the matter, as per Ext.R1(a) the Board reviewed the same. The case of Meter Readers who were promoted as Overseers alone was considered in WPC 17615/07 7 Ext.R1(a). Many of them did not complete five years also. It is stated in the internal page 2 of Ext.R1(a) that these incumbents who could not complete five years on the date of settlement were denied their promotion avenues by implementing the impugned clause of the settlement. The issue relating to the promotion prospects of these Overseers who got entrapped in the process of settlement dated 11.8.2000 needs special treatment. Accordingly, the Board accorded sanction to post Overseers from the grade of Meter Readers against 25% quota for Meter Readers. 10. In fact, even at that point of time when Ext.R1(a) was issued, the claim of promotion raised by the persons like the petitioners who belong to another category and are denied any further avenues of promotion, has not been considered by the Board. The petitioners are also persons who are not able to get promotion in the light of rigour clause 8 of Article VII-B of Ext.P6. Even though learned counsel for the petitioners submitted that all the existing qualified Meter Readers as on the date of settlement will be eligible to be promoted, in the light of the word “qualified” therein, the qualification prescribed by the relevant orders prior to the adoption of Ext.P6 will have to be gone into. It is because of this stipulation that persons like the petitioners are not getting promotion. Thus, these persons are also entrapped as such. Strangely, this aspect was not considered while WPC 17615/07 8 issuing an order like Ext.R1(a). The very reasoning adopted in Ext.R1(a) is that the incumbents therein could not complete five years of service as Overseers from the date of settlement and were denied their promotional avenues by implementing the impugned clause in the settlement. The situation herein is identical. 11. In that view of the matter, the Board should reconsider the issue. It is well settled that any person who enters service will be having a legitimate and reasonable expectation to obtain promotion and the denial of promotion avenues to him will be violative of Articles 14 and 16 of the Constitution of India. Stagnation in service is deprecated. Why the case of others who are yet to complete five years of service as on the date of Ext.P6 as Overseers did not find a place in the settlement is rather strange. But the said anomaly cannot be allowed to remain further and the matter will have to be gone into in detail and appropriate promotional avenues should be provided to them. 12. In this case, it is clear that persons lower in the gradation list than that of the petitioners have gained promotion to the higher post. Plainly, this is violative of Articles 14 and 16 of the Constitution of India. Even though it is now sought to be justified by contending that they are being promoted by a different mode, that cannot defeat the rights of the WPC 17615/07 9 petitioners, since all of them have found a place in the gradation list of Overseer (Electrical). By conferring such benefits of promotion to a particular class including juniors will violate Articles 14 and 16 of the Constitution of India. 13. Therefore, the petitioners are entitled to succeed in this writ petition. Ext.P12 is quashed. Appropriate action will be taken to provide a channel of promotion to persons like the petitioners. Fresh orders will be passed within a period of four months from the date of receipt of a copy of this judgment in accordance with the findings contained herein. The writ petition is allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/