IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 27TH AUGUST 2009 / 5TH BHADRA 1931 WP(C).No. 33215 of 2008(D) --------------------------------------- PETITIONER(S): --------------------- P.A. JOHNSON, (LINEMAN GRADE I, SECTION OFFICE, KSEB, PUTHENVELIKKARA), PANAKKAL HOUSE, CHERUKADAPPURAM, NORTH KUTHIATHODE.P.O, PUTHENVELIKKARA VILLAGE, NORTH PARUR TALUK, ERNAKULAM DISTRICT. BY ADV. MR.O.D.SIVADAS RESPONDENT(S): ------------------------ 1. THE KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVAN, PATTOM PALACE.P.O, THIRUVANANTHAPURAM- 4. 2. THE CHIEF ENGINEER (HRM), KSEB, VYDYUTHI BHAVANAM, PATTOM PALACE.P.O, THIRUVANANTHAPURAM- 4. R1 & R2 BY ADV. MR.K.S.ANIL, SC, KSEB, MR. ASOK M.CHERIYAN, SC, KSEB. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/08/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 33215/2008-D APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ADVICE MEMO DATED 17/06/1996 ISSUED BY THE PSC TO THE PETITIONER. EXT.P2: COPY OF THE LETTER DATED 13/02/1997 LETTER NO.EB2/185 ISSUED TO THE PETITIONER. EXT.P3: COPY OF THE MEMO DATED 21/08/1997 NO.EBEW 1/88/96 ISSUED BY THE CHIEF ENGINEER. EXT.P4: COPY OF THE MEMO DATED 29/08/1997 NO.EB2/185/96-97. EXT.P5: COPY OF THE REPRESENTATION DATED 15/02/2008. EXT.P6: COPY OF THE ORDER DATED 25/08/2008 ISSUED BY THE 2ND RESPONDENT. EXT.P7: COPY OF THE ENVELOP CONTAINING THE APPOINTMENT ORDER SENT TO THE PETITIONER IN THE SECOND TIME. RESPONDENT'S EXHIBITS: EXT.R2(a): COPY OF THE IDENTIFICATION CERTIFICATE DATED 12/09/1995. EXT.R2(b): COPY OF THE APPOINTMENT MEMO DATED 24/08/1996. //TRUE COPY// P.S. TO JUDGE rs. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 33215 of 2008 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 27th August, 2009. J U D G M E N T The petitioner applied for selection to the post of Electrical Mazdoor (Worker) in the Kerala State Electricity Board, pursuant to notification inviting applications by the Kerala Public Service Commission. A rank list was drawn up pursuant to the selection. The petitioner was issued with an advise memo on 17-6-1996. However, the petitioner did not receive any consequential appointment order from the 1st respondent-Kerala State Electricity Board. Subsequently, the petitioner was served with Ext. P3 order dated 21-8-1997 permitting him to join belatedly, when the petitioner enquired with the 1st respondent's office about the non-issue of appointment order to him. Pursuant thereto, the petitioner reported for duty as Electrical Mazdoor (Worker) on 29-8-1997. But prior to that, persons lower in rank had already joined duty. According to the petitioner, since the petitioner did not seek extension of time to join duty in accordance with Rule 27(c) Part II of the Kerala State and Subordinate Service Rules, the petitioner is entitled to seniority with effect from the date of effective advise, namely, 17-6-1996. The same had been denied to the petitioner. The petitioner submitted Ext. P5 representation dated 15-2-2008 seeking seniority with effect from the effective date of advice, namely, 17-6-1996. The same was rejected by Ext. P6. The petitioner is challenging Ext. P6 in this writ petition. 2. A counter affidavit has been filed by the respondents, in which they take the stand that the petitioner was issued with an appointment order dated 24-8-1996, which is marked as Ext. R2(b) in the counter affidavit. The petitioner did not join pursuant thereto. It is long thereafter that the petitioner approached the 1st respondent and on humanitarian consideration, the petitioner was allowed to join duty with effect from 29-8-1997, is the contention raised by the 1st W.P.C. No. 33215/2008. -: 2 :- respondent. According to the 1st respondent, therefore, the petitioner is entitled to seniority only with effect from 29-8-1997 and not with effect from 17-6-1996. 3. The petitioner denied having received Ext. R2(b). Therefore, I passed the following order on 18-8-2009: “The petitioner's claim in this writ petition is for seniority in service under Rule 27(c) of the KS & SSR from the date of effective advice by the P. S. C. The petitioner's contention is that the petitioner was not served with a posting order and when he did not receive a posting order, he made appropriate enquiries and came to know that others included in the advise list were appointed. Therefore, he filed a representation, pursuant to which, he was given another posting order and allowed to join duty. Therefore, the crucial question is as to whether the petitioner was served with a posting order. In the counter affidavit it is specifically averred that the appointment order was despatched to the petitioner by registered post. If that be so, the simplest of simple things the 2nd respondent could have done to prove their case was to produce the acknowledgment for the same. That is conspicuously missing in their counter affidavit. The 2nd respondent shall produce the acknowledgment card for the initial posting. Post on 24.8.2009. If the acknowledgment card is not produced by 24.8.2009, it will be presumed that the initial posting order was not served on the petitioner and the writ petition would be decided accordingly.” 4. Today, when the matter was taken up for hearing, the learned counsel for the Kerala State Electricity Board submits that the original appointment order was not served on the petitioner, since the same was returned unserved although the same was sent by registered post. In view of the said submission, it is clear that the petitioner was not issued with an appointment order as claimed by the respondents. The consequence is that the petitioner cannot be denied seniority with effect from the effective date of advice, namely, 17-6- 1996 in accordance with Rule 27(c) of Part II of K.S and S.S.R. In the above circumstances, Ext. P6 is quashed. It is declared that the petitioner is entitled to seniority in the cadre of Electrical W.P.C. No. 33215/2008. -: 3 :- Mazdoor (Worker) and correspondingly in higher posts on the basis of his effective date of advice, namely, 17-6-1996. Orders in this regard shall be issued as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. The writ petition is allowed as above. S. Siri Jagan, Judge. Tds/