IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR MONDAY, THE 10TH AUGUST 2009 / 19TH SRAVANA 1931 WP(C).No. 14502 of 2009(G) -------------------------- PETITIONER: --------------- A.KUTTY SANKARAN, ASST. EXECUTIVE ENGINEER, ELECTRICAL SUB DIVISION, KERALA STATE ELECTRICITY BOARD, TIRUR, MALAPPURAM DISTRICT. BY ADV. SRI.N.SUGATHAN SMT.VARSHA BHASKAR SRI.S.PRASANTH (AYYAPPANKAVU) RESPONDENTS: --------------- 1. STATE OF KERALA, REP. BY THE PRINCIPAL SECRETARY TO GOVERNMENT, POWER(C) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SPECIAL OFFICER, MANAGING COMMITTEE, KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 3. THE SECRETARY, KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 4. THE EXECUTIVE ENGINEER, ELECTRICAL DIVISION, KERALA STATE ELECTRICITY BOARD, POKKAYIL P.O., TIRUR, MALAPPURAM DISTRICT. 5. THE PRINCIPAL SECRETARY FINANCE (RULES) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. ADV. SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE FOR R2 TO 4 SRI.K.S.ANIL, SC, KSEB FOR R2 TO R4 SRI.N.MANOJ KUMAR, SPL.GOVT.PLEADER FOR R1 & R5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/08/2009, ALONG WITH 14601 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.14502/2009 APPENDIX PETITIONER'S EXTS: EXT.P1: COPY OF G.O.(P_ NO.154/2009/FIN. DATED 24.4.2009. EXT.P2: COPY OF G.O.(P) NO.158/2009/FIN. DATED 30.4.2009. EXT.P3: COPY OF G.O.(MS) NO.37/2008/PD DT. 25.9.2008 EXCLUDING ANNEXURES. EXT.P4: COPY OF B.O.(FB) NO.1390/2009 DT.26.5.2009 OF THE BOARD. EXT.P5: COPY OF G.O.(P) NO.261/2009/FIN. DT.4.7.2009 EXT.P6: COPY OF JUDGMENT DT.1.6.2009 IN W.A.NO.1113/2009 RESPONDENT'S EXTS: EXT.R3(a): COPY OF THE BOARD ORDER DT.25.9.2008 //TRUE COPY// PA TO JUDGE K. BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. ------------------------------- W.P.(C).Nos. 14502, 14601, 14881, 14897, 14903, 14905, 14908, 14909, 14910, 14927, 17016, 17088, 17283, 17294, 17308, 17459, 17516, 17644, 17645, 19050, 19331, 19482, 19964, 20521, 20574, 20612, 20757, 20789, 21052 & 21145 OF 2009 ---------------------------------- Dated this, the 10th day of August, 2009 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. In this batch of cases, we have already passed an interim order on 30.7.2009. The said order reads as follows: “Writ Petition (C) No.14502 of 2009 is treated as the main case for the purpose of referring to the exhibits. All the petitioners are employees of the K.S.E.Board. They are on the verge of superannuation. It is common ground that the provisions of the Kerala Service Rules were applicable to the employees of the K.S.E.Board as amended from time to time, unless the Full Board takes a decision to the contrary, that an amendment need not be made applicable. The Government issued Ext.P1 Government Order dated 24.4.2009 providing that all Government servants covered by Rule 60(a) of Part I, K.S.R., retiring in the financial year 2009-10 will retire only on 31.3.2010. The Government issued Ext.P2 order stating that the said W.P(C) Nos.14502/2009 etc. 2 Government Order will apply to the employees of all Public Sector Undertakings, autonomous bodies, Universities, Corporations and the Boards under the State Government. The said order also stipulates that, in case of autonomous bodies Ext.P1 Government Order will apply subject to any decision by the governing bodies of such autonomous bodies. The managing committee of the Electricity Board, by Ext.P4 decision, decided not to make applicable Exts.P1 and P2 Government Orders, to the employees under the K.S.E.Board. Aggrieved by the said decision of the Board, these writ petitions are filed. Apart from quashing Ext.P4 order, other consequential reliefs are also sought. 2. Going by Ext.P3 Scheme, until new Government companies are formed, the employees of the Board from the date of publication of Ext.P3 scheme dated 25.9.2008, will be deemed to be Government servants. This is evident from para 5(6) of Ext.P3 scheme, which is a Scheme published by the Government under Section 131 of the Electricity Act. Clause (6) of para 5 reads as follows: “(6) The existing officers and employees of the Board, subject to their conditions of service, will continue to discharge their duties, responsibilities, obligations and functions as was done before as per the existing delegation of powers on behalf of the Government in the place of the W.P(C) Nos.14502/2009 etc. 3 Board and in the name as 'Kerala State Electricity Board' till it is re-vested in a company by the State Government in accordance with sub-section (2) of Section 131 of the Act and the officers and employees who are discharging their duties under the Scheme during this period shall be deemed to be under the services of the State Government.” Clause (11) of Para 5 of the Scheme provides that existing Rules and Circulars will continue to be in force unless modified by the managing committee in accordance with law. 3. Now, it is common case that, in the place of Ext.P1 Government Order, the Government have issued statutory rules on 4.7.2009, (published in the Kerala Gazette dated 7.7.2009) amending Rule 60(a) of Part I, K.S.R., in tune with Ext.P1. In view of this amendment, which is introduced with effect from 24.4.2009, we, prima facie, feel that Ext.P4 decision will not have any effect. In view of the earlier decision of the Board which continues to be in force by virtue of Para 5 (11) of Ext.P3 scheme, this amendment will apply to the employees of the Electricity Board, unless there is a decision to the contrary. In view of the present situation, we feel that, such a contrary decision will have legitimacy if only it is taken by the Government. Having regard to the facts of the case, the Managing Committee, if it thinks W.P(C) Nos.14502/2009 etc. 4 fit, may inform the Government of its view regarding the rejection of the amendment brought by S.R.O.No.582/2009 published in the Kerala Gazette dated 7 th July, 2009 within two weeks from today. The Government shall take a final decision, taking into account the views of the Board, whether the employees of the K.S.E.Board should be denied the benefit of the aforementioned amendment to Rule 60(a) of Part I, K.S.R.. This the Government shall decide within four weeks from today. Until such a decision is taken, the employees of the Board who are due to retire from service on 31.7.2009 or thereafter shall not be superannuated. If any employee opts to retire, the Electricity Board will not be bound to retain him in service. The persons who are continuing in service by virtue of the interim orders passed by this Court or otherwise, shall also be the beneficiaries of this order. The benefit of this order will be made applicable to all the employees of the K.S.E.Board, irrespective of the fact that they are not parties in these writ petitions.” 2. Today, we heard the learned counsels on both sides. We have already asked the Government to take a decision whether the newly amended provisions of Rule 60(a) of Part I, K.S.R. providing that the employees, who attain the W.P(C) Nos.14502/2009 etc. 5 age of 55 during a financial year, will retire only on the last day of that financial year, should be made applicable to Electricity Board employees also. We have also ordered that till the Government takes a final decision in the matter, the petitioners and other similar employees of the Board shall be retained in service. 3. In view of the aforementioned direction, we feel that these Writ Petitions can be disposed of making the said direction absolute. It is ordered accordingly. It is clarified that the employees serving the Board on the strength of this interim order or the interim orders passed earlier by the learned Single Judge, shall be entitled to get the salary due to them. It is also ordered that they need not refund the salary even if the decision of the Government goes against them. The Writ Petitions are disposed of as above. (K. BALAKRISHNAN NAIR, JUDGE) (C.T.RAVIKUMAR, JUDGE) ps