IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 16TH SEPTEMBER 2010 / 25TH BHADRA 1932 WP(C).No. 3081 of 2005(P) ------------------------- PETITIONER: --------------- RAJU P.T., S/O.P.THANKAPPAN, AGED 38 YEARS,"KRISHNALAYAM", V.K.B. ROAD, ETTUMANOOR, NOW WORKING AS SENIOR ASSISTANT, ATPS UNIT OF KERALA STATE ELECTRICITY BOARD, KOTTAYAM. BY ADVS. SRI.ROY THOMAS SRI.N.M.VARGHESE RESPONDENTS: --------------- 1. KERALA STATE ELECTRICITY BOARD, REP. BY THE SECRETARY, VAIDYUTHI BHAVAN, PATTAM, THIRUVANANTHAPURAM-4. 2. THE CHIEF ENGINEER(HRM), KERALA STATE ELECTRICITY BOARD, VAIDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM-4. 3. THE FINANCIAL ADVISOR, KERALA STATE ELECTRICITY BOARD, VAIDHUTHY BHAVAN, PATTOM, THIRUVANANTHAPURAM-4. 4. THE DEPUTY CHIEF ENGINEER, ELECTRICAL MAJOR SECTION, KOTTAYAM. R1 TO R4 SRI.C.K.KARUNAKARAN, SC FOR KSEB THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK WP(C).No. 3081 of 2005(P) APPENDIX PETITIONER'S EXHIBITS. EXT.P1. COPY OF THE CERTIFICATE NO.10360 (REGN.NO.SRN/002718) DATED 16.9.1998 ISSUED BY THE INSTITUTE OF COST AND WORKS ACCOUNTS OF INDIA IN FAVOUR OF THE PETITIONER. “ P2. COPY OF THE CERTIFICATE NO.28156 (REGN. NO.RSW/07446) DATED 24.8.2004 ISSUED BY THE INSTITUTE OF COST AND WORKS ACCOUNTS OF INDIA IN FAVOUR OF THE PETITIONER. “ P3. COPY OF THE CERTIFICATE NO.32009 (ENROLMENT NO.011639524) DATED 27.3.2003 ISSUED FROM THE INDIRA GANDHI NATIONAL UNIVERSITY IN FAVOUR OF THE PETITIONER. “ P4. COPY OF THE B.O.NO.181/1999 (ESTT.II/9285/82) DATED 22.1.1999 ISSUED BY THE 1ST RESPONDENT BOARD. “ P5. COPY OF THE RELEVANT EXTRACT OF THE CIRCULAR NO.EB/GR3/10% AE (ELE)/2001 DATED 30.4.2002 ISSUED BY THE KSEB. “ P6. COPY OF THE RELEVANT EXTRACT OF THE CIRCULAR NO.EB/GR3/10% AE (ELE)/2002 DATED 01/06/2002 ISSUED BY THE BOARD. “ P7. COPY OF REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 01.09 .2004. “ P8. COPY OF THE NEWS ITEM APPEARED IN THE 'MATHRUBHUMI' 'THOZHIL VARTHA' DATED 17.7.2004. “ P9. COPY OF THE JUDGMENT PASSED BY THIS HON'BLE COURT DATED 26.10.2004 IN WP(C) NO.31281/2004. “ P10. COPY OF THE ORDER NO.EB/LAW/WP 31281/2004 DATED 15.12.2004 PASSED BY THE 2ND RESPONDENT. RESPONDENTS EXHIBITS : NIL. P.S. TO JUDGE / TRUE COPY / VK S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No.3081 of 2005 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16th day of September, 2010 J U D G M E N T The petitioner entered into the service of the Kerala State Electricity Board as a Cashier with effect from 03.07.1992. He got promotion as Senior Assistant with effect from 06.04.1994 and obtained higher grade promotion with effect from 06.04.2004. He is presently working as Superintendent on grade promotion. Petitioner acquired further qualifications of ICWA and PGDCA. According to the petitioner, the petitioner is fully qualified for the post of Divisional Accountant Grade-II. Petitioner put a representation seeking appointment by transfer to the post of Divisional Accountant Grade-II. Since that was not favourably considered, the petitioner filed a writ petition as W.P. (C) No.31281/2004 in which there was a direction to the Electricity Board to consider the petitioner's representation. Consequently petitioner's representation was considered and by Ext.P10 order, it was rejected on the W.P.(C)No.3081 of 2005 -2- ground that, the petitioner is not eligible to be appointed by transfer or by promotion in accordance with the recruitment rules applicable. Petitioner is challenging Ext.P10. The contention of the petitioner is that, when the petitioner is available in service of the K.S.E.B. with all qualifications prescribed for direct recruitment to the post of Divisional Accountant Grade-II, it is only just and proper and that the petitioner should be appointed by transfer to that post. 2. In answer to the same, the counsel for the Electricity Board submits that, K.S.E.B can make appointments and promotions only in accordance with the recruitment rules applicable. As per the recruitment rules applicable, even if the petitioner possesses the required qualifications for direct recruitment, the petitioner cannot be appointed by transfer, since the recruitment rules do not provide for the same. The respondents therefore would contend that, the writ petition is liable to be dismissed. 3. I have considered the rival contentions in detail. W.P.(C)No.3081 of 2005 -3- 4. Ext.P4 is the recruitment rule applicable to the post of Divisional Accountant Grade-II. In the same, the method of appointment to that post is given as follows: “There shall be the following three methods of appointment to the grade of Divisional Accountant Grade.II in the K.S.E. Board in the ratio 1:1:1 viz. 1. Appointment of departmental candidates (by transfer) with qualification of Divisional Accountant Test conducted by the Kerala Public Service Commission. 2. Appointment of Departmental candidates (by promotion) from among Senior Assistants having 10 years service with qualification of Account Test (Higher). 3. Recruitment of candidates from open market (General recruitment) possessing minimum qualifications as mentioned below, through the Kerala Public Service Commission. 1. Graduation plus a pass in the Intermediate Examination conducted by the Institute of chartered Accountants of India or a pass in the Intermediate Examination conducted by the Institute of cost and works Accountants of India. OR 2. A pass in B.Com in Ist class with not less than 3 years experience in Government undertakings in Finance and Accounts Department. OR 3. Graduation plus a pass in the SAS (Commercial) Examination conducted by Indian Audit and Accounts Department).” 5. The petitioner can become a Divisional Accountant Grade-II only by resort to anyone of the three W.P.(C)No.3081 of 2005 -4- methods of appointment to the post prescribed in the rule. Admittedly, the petitioner is not eligible for either appointment by transfer or by promotion to the post. Therefore, the petitioner can only aspire for appointment by direct recruitment. For that, when the Electricity Board invites applications for direct recruitment, the petitioner should apply. In fact, that exactly has been directed in Ext.P10 order, the relevant portion of which reads as follows: “Sri.Raju.P.T., Superintendent, APTS Unit, Kottayam is eligible to apply any of the above three modes of appointment as and when notification/option is called for. For the above method (1) and (3) the petitioner has to apply to KPSC, when KPSC notifies for the selection of the same post. But in method (2) the petitioner has to apply as and when option from the Board employees is called for. As of now there exists an option list also. In the circumstances stated above, the request of the petitioner for appointment to the post of Divisional Accountant cannot be considered and hence declined. The Ext.P7 representation is disposed of as above and ordered accordingly.” 6. In view of the recruitment rules, I do not think that, the petitioner can aspire for either appointment by transfer or by promotion to the post of Divisional Accountant Grade-II in so far as admittedly he is not qualified for the same as per the rule. W.P.(C)No.3081 of 2005 -5- 7. Of course, the counsel for the petitioner would contended that, in view of Exts.P5 and P6 orders in respect of Assistant Engineers petitioner also should be given similar benefits for the post of Divisional Accountant Grade-II. On a reading of Exts.P5 &P6, I find that, in respect of Engineers there is a specific provision in the recruitment rules for such appointment and 10% vacancies are set apart for the same. That is not the case here. The counsel for the petitioner would submit that, there should be a 10% quota for the persons like the petitioners also. For directing the same the recruitment rules have to be amended. That is the power vested with the rule making authority and this court cannot direct amendment of the rules for that purpose. For the above reasons, I do not find any merit in the writ petition and accordingly the same is dismissed. S. SIRI JAGAN JUDGE shg/