IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 24TH SEPTEMBER 2008 / 2ND ASWINA 1930 WP(C).No. 23794 of 2006(G) --------------------------------------- PETITIONERS: --------------------- 1. SHRI M.K.SURAN, AGED 40 YEARS, S/O.LATE.M.K.KUTTAPPAN, MANAYATH HOUSE, KARUKUNNU, U.C.COLLEGE P.O., ALUVA-683 102 (RANK NO.629). 2. JAMALUDHEEN V.I., AGED 38 YEARS, S/O.HAIDRU P.M., VAPPUNNEL HOUSE, MANARY P.O., PAIPRA (RANK NO.647) 3. SHRI ANIL M.K., AGED 35 YEARS, S/O.KUNJAN, MAROTTICKAL VEEDU, KADATHY EAST, MARKET P.O., MUVATTUPUZHA (RANK NO.674). 4. SHRI KOCHU MARAKKAR P.I., AGED 35 YEARS S/O.IBRAHIM, PALAICKAL HOUSE, UNIVERSITY P.O., SOUTH KALAMASSERY, (RANK NO.689). 5. SHRI P.C.JOY, AGED 34 YEARS, S/O.CHACKO P.O.,PUTHUSSERY HOUSE, NAYATHODE P.O., ANGAMALY, PIN-683572,(RANK NO.710). 6. SHRI E.M.JAMAL, AGED 33 YEARS, S/O.AHAMMED MAMMU, EDASSERIKUDY HOUSE, P.O.MANARY, PAIPRA, MUVATTUPUZHA (RANK NO.719). 7. SHRI RAJEEV.K.K., AGED 33 YEARS, S/O.KUNJAPPAN.K.W, KURIYAPPANSSERY, VETTAICKAL P.O., CHERTHALA (RANK NO.721). 8. SHRI SUNIL KUMAR V.C., AGED 32 YEARS, S/O.CHITHRANGATHAN V.S. VATTATHARA HOUSE, NEDUNGAD, NAYARAMBALAM P.O., (RANK NO.732). 9. SHRI BINEEH O.G.,AGED 31 YEARS, S/O.GANGADHARAN, OTTATHAI PARAMBU, CHERANALLOOR -682034, (RANK NO.744). W.P.(C). NO.23794/2006-G: 10. SHRI SANTHOSH T.K., AGED 30 YEARS, S/O.KRISHNAN T.K., THALIKKARA HOUSE, POICKATTUSERRY, CHANGAMAND P.O. (RANK NO.770). 11. SHRI T.B.ANILKUMAR, AGED 33 YEARS, S/O.BHASKARA PILLAI, THEKKEVEETTIL HOUSE, PERUMPILLY P.O., MULANTHURUTHY, ERNAKULAM DISTRICT, PIN-682314. 12. SHRI. ANILKUMAR V.P., AGED 42 YEARS, S/O.K.PADMANABHAN, VETTATHUTHARAYIL, PALLILAMKARA, PIPELINE, KALAMASSERY. 13. ANSON.JOHN.K., KOVATTU PARAMBIL HOUSE, KURISUPALLY ROAD, PERUMANOOR P.O., KOCHI-682015 (RANK NO.667). 14. K.D.SUMESH, AGED 28 YEARS, S/O.DAVID, KUNDAL HOUSE, ROCKWELL COLONY, PALLILAMKARA, KALAMASSERY, H.M.T. P.O.-683563, ERNAKULAM. 15. SHELBY E.P., AGED 41 YEARS, S/O.POULOSE, ERALIL PERUVARAM, NORTH PARUR, (RANK NO.597). 16. JOSHY LAL T.P., AGED 40, S/O.PAPPICHI, THAIPARAMBIL (H), AZAD ROAD, KALOOR-17. (RANK NO.625). BY ADV. SRI.S.RAMESH BABU. RESPONDENTS: ----------------------- 1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM. 2. THE CHIEF ENGINEER (HRM), VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM. W.P.(C). NO.23794/2006-G: 3. DEPUTY CHIEF ENGINEER, ERNAKULAM. 4. DEPUTY CHIEF ENGINEER, PERUMBAVOOR. *ADDL.R5. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM. *IS IMPLEADED AS PER ORDER DATED 18/09/2006 IN I.A. NO. 12751/2006. ADV. SRI. ASOK M.CHERIYAN, S.C, K.S.E.B FOR R1 TO R4, ADV. SRI. ALEXANDER THOMAS, S.C, K.P.S.C FOR R5. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/09/2008, ALONG WITH W.P.(C). NOS.434/2006 & 451/ 2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.23794/2006-G: APPENDIX PETITIONERS' EXHIBIT: EXT.P.1: COPY OF THE RELEVANT EXTRACT FROM THE RANK LIST. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. prv. P.N.RAVINDRAN, J ----------------------------- W.P.(C) Nos: 23794/2006, 434/2006 & 451/2006 ----------------------------- Dated this 24th day of September, 2008 J U D G M E N T Common questions arise for determination in these writ petitions. They were therefore heard together and are being disposed of by this common judgment. W.P.(C) No.451/2006 is treated as the leading case. The brief facts of the case are as follows: 2. The petitioners are candidates included in Ext. P1 ranked list of Electricity Workers (Mazdoors) in Ernakulam district published by the Kerala Public Service Commission (hereinafter referred to as the "Commission" for short) on 13.01.2003. The ranked list ceased to be in force on 12-01-2006. The essential grievance voiced by the petitioners is that notwithstanding the availability of vacancies, the Kerala State Electricity Board, (hereinafter referred to as the "Board" for short), has not reported the vacancies to the Commission. According to the petitioners, more than 200 vacancies of Electricity Workers (Mazdoors) existed in Ernakulam district before the expiry of the ranked list. When W.P.(C) No.434 of 2006 came up for admission, this Court passed an interim order directing respondents W.P.(C) NOs: 23794/2006, 434/2006 & 451/2006 2 1 to 4 to report 200 vacancies of Electricity Workers (Mazdoors) in Ernakulam district to the 5th respondent by 12-01-2006. It was also directed that against the said vacancies candidates need be advised only on getting further orders from this Court. According to the petitioners, pursuant to the said direction, respondents 1 to 4 have reported 200 vacancies of Electricity Workers (Mazdoors) to the Commission. 3. The petitioners contend that the sanctioned strength of Electricity Workers in each Electrical Section is 12 and as there are 72 Electrical Sections in Ernakulam district, the total sanctioned strength of Electricity Workers (Mazdoors) is 864. The petitioners also have a case that besides the 864 Electricity Workers in the 72 Electrical Sections sanctioned posts of Electricity Workers exist in other establishments of the Board, namely in the Sub Stations, Transmission and Construction Sections, Regional Stores, Sub Regional Stores, Brahmapuram Diesel Plant and TCMS - Mobile Inspection Units. The petitioners rely on Ext.P5 budget estimates to contend that in each W.P.(C) NOs: 23794/2006, 434/2006 & 451/2006 3 Electrical Section, the sanctioned strength of Electricity Workers is 12. 4. The respondents dispute the said averment and according to them, the sanctioned strength of Electricity Workers in each Section is only 6. Though it relies on certain Board orders which are referred to in paragraph 5 of the counter affidavit dated 24-3-2006, the Board has not chosen to produce the said orders. According to the Board, the total cadre strength of Electricity Workers in Ernakulam district is 570. The Board also contends that 642 candidates were advised from Ext.P1 ranked list and that no further vacancies existed as on 12-01-2006 against which petitioners could have been advised. In the counter affidavit dated 24-03-2006, the Board has taken the stand that no vacancy of Electricity Worker exists after the advise of 642 candidates from Ext.P1 list. In the additional counter affidavit dated 31-5-2007, the Board has reiterated the said stand. On the other hand, the petitioners contend that vacancies which ought to have been filled up by advising and W.P.(C) NOs: 23794/2006, 434/2006 & 451/2006 4 appointing candidates inluded in Ext.P1 ranked list were filled up under the Dying-in-harness scheme ingnoring the qualifications prescribed in Ext.P2 and by posting Office Attendants against sanctioned posts of Electricity Workers and that those vacancies were also available to be filled up by appointing persons included in Ext.P1 ranked list. 5. In view of the dispute between the parties as regards the actual number of available vacancies, this Court had by order passed on 20-06-2007 directed the Assistant Executive Engineer who had sworn to the additional counter affidavit dated 31-05-2007 to file a further affidavit disclosing the identity of 41 vacancies referred to in paragraph (5) of the counter affidavit dated 19-6-2007. Pursuant thereto, the said officer has sworn to an affidavit dated 19-6-2007 and produced along with it Ext.R1 (a). According to the Board, 41 vacancies were filled up under the Dying-in-Harness Scheme and also by posting Line Man and other categories of workers as Electricity Workers (Mazdoors). On the other hand the petitioners contend that in any view of the W.P.(C) NOs: 23794/2006, 434/2006 & 451/2006 5 matter, the said 41 persons are not entitled to hold the post of Electricity Workers (Mazdoors) and that the said 41 vacancies are vacancies that were available to be filled up by appointing candidates included in Ext.P1 ranked list. The petitioners have filed a reply affidavit, contending that by Ext.P17 order passed on 8-12-2005 Manjapra Section was bifurcated into Malayattoor and Manjapra sections and by the creation of a new section 12 more vacancies of Electricity workers have arisen in the Board. 6. A person aspiring for appointment as Electricity Worker (Mazdoor) "should have passed 4th standard and should not have passed 10th standard. According to the petitioners, majority of the persons appointed under the Dying-in-Harness Scheme named in Ext. R1(a) possess qualifications higher than those prescribed in Ext.P2 and are therefore ineligible to be appointed as Electricity Workers. The petitioners do not however dispute their entitlement for appointment in the Board under the Dying- in-Harness Scheme. The petitioners also attack Ext.P11 Board Order dated 23-03-2005 which enables Office Attendants to be W.P.(C) NOs: 23794/2006, 434/2006 & 451/2006 6 posted as Electricity Workers. Ext.P11 discloses that conversion from the post of Electricity Worker to the post of Office Attendant is a temporary measure and that no fresh recruitment to the post of Office Attendant will be made till the excess Office Attendants appointed against vacancies of Electricity Workers are accomodated against regular vacancies that arise in future. 7. The only question that survives for adjudication at this distance of time is how many vacancies of Electricity Workers (Mazdoors) were in existence as on 12-1-2006 when Ext.P1 ranked list ceased to be in force. As noticed earlier though the Board has a case that there are only 6 sanctioned posts of Electricity Workers in each section, the documents relied on in support of the said contention have not been produced. On the other hand Ext.P5 budget estimates disclose that in each section the sanctioned strength of Electricity Workers is 12. This is further fortified by the statement in Ext.P17 which contemplates the creation of 6 posts of Electricity Workers for each section W.P.(C) NOs: 23794/2006, 434/2006 & 451/2006 7 consequent on the bifurcation of Manjapra section into Manjapra and Malayattoor sections. If as contended by the Board the sanctioned strength of Electricity Worker in each section is 6, there is no reason why the Board should have in Ext.P17 directed creation of 6 posts of Electricity Workers in each section after Manjapra section was bifurcated into two sections. On the materials available on the record I am therefore persuaded to take the view that the sanctioned strength of Electricity Workers in each section is 12. Manjapra section was bifurcated on 8-12-2005. Ext.P1 ranked list was in force at that time. It ceased to be in force only on 13-1-2006. By Ext.P17 the Board directed creation of 6 posts of Electricity Workers in Malayattoor and Manjapra sections. Therefore, one can safely come to the conclusion that 12 vacancies of Electricity Workers were available to be filled up before the expiry of Ext.P1 ranked list. 8. The next question is whether other vacancies of Electricity Workers were in existence as on 12-1-2006. While the petitioners would contend that 41 vacancies referred to in Ext.R1 W.P.(C) NOs: 23794/2006, 434/2006 & 451/2006 8 (a) were available to be filled up by appointing candidates named in Ext.P1 ranked list, the Board would contend that those vacancies were not available to be filled by appointing candidates included in Ext.P1. Ext.R1(a) discloses that four persons were appointed as Line Man under the Dying-in-Harness Scheme in Electrical Section Edappally; Electrical Section, Central; Electrical Section, Tripunithura and Electrical Section, Njarakkal and posted against vacancies of Electiricity Workers in those sections. The post of Line Man is the next promotion post of Electricity Worker. Regulation 9 (7) governing appointments under the Dying-in Harness Scheme states that if a list of candidates for appointment under the Board prepared by the Commission is in force, the candidates included in that list will have priority over candidates claiming appointment under the Dying-in-Harness Scheme. It is evident from Ext.R1(a) that 4 persons were appointed as Line Man and posted as Electricity Workers in the four Electrical Sections referred to above during the period when Ext.P1 ranked list was in force. Going by the W.P.(C) NOs: 23794/2006, 434/2006 & 451/2006 9 Regulations govering appointments under the Dying-in-Harness Scheme the said action of the Board was illegal and had an adverse impact of the interests of candidates included in Ext.P1 ranked list. Therefore, those 4 vacancies of Electricity Workers also have to be held as vacancies against which candidates named in Ext.P1 ranked list ought to have been appointed. 9. The next question is whether the appointment of 20 persons as Office Attendants Gr. II and their posting as against vacancies of Electricity Worker during the period when Ext.P1 ranked list was in force can stand in the way of the petitioners claiming appointment against those 20 vacancies. 20 persons were appointed as Office Attendant Gr. II and posted against vacancies of Electrical Workers pursuant to Ext.P11 Board order dated 23-3-2005. Though the petitioners have amended the writ petition by incorporating a challenge to Ext.P11 they have not chosen to implead any one of the 20 persons appointed as Office Attendant Gr.II as parties to these writ petitions. If Ext.P11 is quashed, the said 20 office Assistants will be thrown out from W.P.(C) NOs: 23794/2006, 434/2006 & 451/2006 10 service. Therefore no relief can be granted to the petitioners in respect of the said 20 vacancies. 10. The next question is whether the 13 vacancies of Electricity Workers occupied by Line Man, were available to be filled up by candidates named in Ext.P1 ranked list. As noticed earlier, the post of Line Man is the next promotion post of Electricity Worker. The learned standing counsel appearing for the Board submits that the said 13 persons were appointed in various offices under the System Operation Circle, Kalamassery where the sanctioned post is that of Line Man/Electricity Worker and therefore the petitioners cannot take exception to the posting of Line Man as Electricity Worker. The petitioners dispute the said averment and contend relying on Ext.P13 that all the persons working as Line Man are persons promoted from the lower post of Electricity Worker. The contend that vacant posts of Electiricity Workers have been filled up by appointing Line Man. On the materials on record, I am not persuaded to accept the said contention for the reason that in System Operation W.P.(C) NOs: 23794/2006, 434/2006 & 451/2006 11 Circle, Kalamassery the post of Line Man is interchangable with that of Electricity Worker. In the result I hold that as on 12-1-2006 16 vacancies of Electiricity Workers (Mazdoors), were available to be filled up by appointing persons included in Ext.P1 ranked list. The writ petitions are therefore allowed and the Commission is directed to advise 16 candidates from Ext.P1 ranked list against 16 posts of Electricity Workers. Such advice shall be made within one month from today and the Board shall thereupon forthwith issue orders appointing the said 16 candidates as Electricity Workers. P.N.RAVINDRAN, JUDGE bps