IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 22ND JANUARY 2010 / 2ND MAGHA 1931 WP(C).No. 11715 of 2005(T) ---------------------------------------- PETITIONER(S): ------------------------ 1. GOPALAKRISHNAN.V., LINEMAN GRADE I, ELECTRICAL SECTION, KADAPPAKKADA, KOLLAM. 2. E.C.SURESH, LINEMAN GRADE I, ELECTRICAL SECTION, MANIPUZHA, THIRUVALLA. 3. SEBASTIAN JOSEPH, LINEMAN GRADE I, ELECTRICAL SECTION, MANIPUZHA, THIRUVALLA. 4. GEEVARGHESE.K., LINEMAN GRADE-I, ELECTRICAL SECTION, CHATHANNOOR. 5. P.MURALEEDHARAN, LINEMAN GRADE I, ELECTRICAL SECTION, VELIYAM, KOLLAM. 6. N.V.SREE KUMAR, LINEMAN GRADE I, 110 K.V.SUB STATION, AMBALAPPURAM, KOTTARAKKARA. 7. H.ANSARUDEEN, LINEMAN GRADE I, ELECTRICAL SECTION, VELIYAM, KOLLAM. 8. JOHN JACOB, LINEMAN GRADE I, ELECTRICAL SECTION, VELIYAM, KOLLAM. 9. SHAINULABDEEN.A., LINEMAN GRADE I, ELECTRICAL SECTION, AYOOR, KOLLAM. Kss ..2- ..2... WPC.NO.11715/2005 T 10. NAZARUDEEN KUNJU.A., LINEMAN GRADE I, ELECTRICAL SECTION, THEVALAKKARA, KOLLAM. 11. S.NOUSHAD, LINEMAN GRADE I, ELECTRICAL SECTION, KARUNAGAPALLY NORTH. 12. R.P.THANKALAL, LINEMAN GRADE I, ELECTRICAL SUB DIVISION, PALLIMUKKU, KOLLAM. 13. RAVI KUMAR.K., LINEMAN GRADE I, ELECTRICAL SECTION, VELIYAM, KOLLAM. 14. C.K.GOPIKUTTAN PILLAI, LINEMAN GRADE I, ELECTRICAL SECTION, T.C.M.S., KOLLAM. 15. J.GOPALAKRISHNA PILLAI, LINEMAN GRADE I, ELECTRICAL SECTION, OLAI, KOLLAM. 16. G.GEORGEKUTTY, LINEMAN GRADE I, ELECTRICAL SECTION,ANCHAL, KOLLAM. 17. A.J.NAJUMUDEEN, LINEMAN GRADE I, ELECTRICAL SECTION, KOTTIYAM. 18. M.KRISHNAKUMAR, LINEMAN GRADE I, ELECTRICAL SECTION, AYATHIL, KOLLAM. 19. MAHIPAL.K., LINEMAN GRADE I, ELECTRICAL SECTION, AYOOR, KOLLAM. 20. RAJEEV KUMAR.K., LINEMAN GRADE I, T.C.M.S., ELECTRICAL SUB DIVISION, PALLIMUKKU, KOLLAM. 21. LALUCHAN.L., LINEMAN GRADE I, ELECTRICAL SECTION,CHENGANNUR. 22. JOHN DAVID, LINEMAN GRADE I, ELECTRICAL SECTION, NOORANAD. Kss ..3/- ..3.... WPC.NO.11715/2005 T 23. V.R.SUNILKUMAR, LINEMAN GRADE I, ELECTRICAL SECTION, CONDONMENT, KOLLAM. 24. RAJASEKHARAN PILLAI.G., LINEMAN GRADE I, ELECTRICAL SECTION, EZHAMKULAM, PATHANAMTHITTA. 25. SREEKUMAR.N.V., LINEMAN GRADE I, ELECTRICAL SECTION, PANDALAM, PATHANAMTHITTA. 26. SAJEEVAN.D., LINEMAN GRADE I, ELECTRICAL SECTION, ADOOR, PATHANAMTHITTA. 27. JAYAPRAKASH.C., LINEMAN GRADE I, ELECTRICAL SECTION, KADAMBANAD, ADOOR, PATHANAMTHITTA. BY ADV.MR.S.RAMESH BABU RESPONDENT(S): --------------------------- 1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVANAM, PATTOM,THIRUVANANTHAPURAM. 2. THE CHIEF ENGINEER (HRM), VYDYUTHI BHAVANAM, PATTOM,THIRUVANANTHAPURAM. 3. N.ANIL KUMAR, METER READER, ELECTRICAL CIRCLE, KOZHIKODE. R1 & R2 BY ADV.MR.C.K.KARUNAKARAN, SC FOR KSEB THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.11715/2005 T APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE RELEVANT PORTION OF THE SETTLEMENT. P2: COPY OF ORDER NO.EB-4-110/2001 DTD. 29/01/2001. P3: COPY OF THE COUNTER AFFIDAVIT IN WP(C) NO.33595 OF 2003. P4: COPY OF THE RELEVANT EXTRACT OF THE GRADATION LIST. P5: COPY OF THE ORDER NO.EB.4/110/2004 DTD. 15/01/2005. P6: COPY OF THE ORDER DTD. 7/02/2003. P7: COPY OF THE ORDER OF THE DIVISION BENCH. RESPONDENT'S EXHIBIT & ANNEXURE: R1(A): COPY OF THE B.O.NO.PSI - 84/88 (59) DTD. 05/10/1990. ANNEXURE 1: COPY OF RELEVANT EXTRACT OF BOARD ORDER NO. EB2/S.E.(ELE)/TRAINEES/08-09 DTD. 3/2/2009. /TRUE COPY/ P.A.TO JUDGE Kss C.R. K.SURENDRA MOHAN, J. ------------------------------------------- W.P.(C) No.11715 of 2005 ------------------------------------------- Dated this the 22nd day of January, 2010 JUDGMENT The petitioners are all persons working as Lineman Grade I under the Kerala State Electricity Board. They have filed this Writ Petition claiming that they are entitled to be promoted to the cadre of Meter Readers. According to the petitioners, promotion to the post of Meter Readers is to be made according to the terms of Ext.P1 Long Term Settlement entered into between the Kerala State Electricity Board and the Unions. As per Ext.P1 settlement, promotions have to be made by following the ratio of 60:40 out of which, 40% is set apart for the promotion of in-service candidates. The further case of the petitioners is that out of the 40% vacancies so set apart for the promotion of in-service candidates, 25% is to be filled up from all categories below Meter Readers, while W.P.(C)No.11715/2005 2 15% is set apart entirely for promotions from the cadre of Lineman Grade I. The petitioners claim that they had become qualified for such promotion from the year 2004 onwards. The petitioners challenge Ext.P5 proceedings dated 15.1.2005 by which promotions have been given to 250 persons as Meter Readers who are alleged to be juniors to the petitioners. 2. According to the counsel for the petitioners, their case is covered in their favour by the judgment of this Court dated 10.2.2009 in W.P.(C)No.10602 of 2006 and the judgment dated 2.6.2009 in W.P.(C) Nos.4834 and 6300 of 2005. As per the above judgments, this Court has held that the stand of the Board that only persons who are qualified as on 7.2.2003 were eligible for promotion has been found to be unsustainable. 3. The counsel for the petitioners also relies on the Full Bench decision of this Court in A.M.Mani v W.P.(C)No.11715/2005 3 Kerala State Electricity Board (1967 KLT 885 (F.B.) to contend for the proposition that the Long Term Settlement arrived at has to be given full effect to, in view of Section 78A of the Electricity Supply Act, 1948. According to the counsel, the same is the effect in the judgment of this Court dated 30.3.2003 in O.P.No.28675/2000. Therefore, the counsel prays that this Writ Petition is to be allowed. 4. A counter affidavit has been filed on behalf of the respondents. In paragraph-5 of the counter affidavit what is stated is that though the ratio for promotion had been modified to 60:40 by the Long Term Settlement of 2000, the same has not been enforced for the reason that concurrence of the Kerala Public Service Commission was not obtained for modifying the ratio of promotion. Since the modification was made subject to concurrence of the Kerala Public Service Commission, the same was not enforceable without such concurrence being obtained. W.P.(C)No.11715/2005 4 According to the counter affidavit, since the petitioners had become qualified for promotion only in the year 2004, they were not eligible to be promoted, the date with respect to which promotions were effected being 7.2.2003. Therefore, the counsel prays for dismissal of the Writ Petition. 5. I have heard Mr.S.Ramesh Babu who appears for the petitioner and Sri.C.K.Karunakaran, Standing Counsel for the Kerala State Electricity Board. I have also anxiously considered the contentions of the rival parties. 6. In the case of similarly placed employees of the Kerala State Electricity Board who had approached this Court challenging the action of the Board in denying promotion on the ground that they were not qualified as on 7.2.2003, this Court has held that insistence on the said date for denying promotion to the petitioners was not justified. After considering the scope of the circular that stipulated the date, W.P.(C)No.11715/2005 5 7.2.2003, this Court has concluded as follows:- “A reading of Ext.P8 and the counter affidavit discloses that the respondents have denied promotion to the petitioner on the short ground that he was not qualified as on 7.2.2003. On the materials on record and having regard to the terms and stipulations in Ext.P2, I am of the opinion that the stand taken by the respondents cannot be sustained. The respondents have also not stated that other applicants who are similarly placed as the petitioner were also denied promotion, adopting the stand taken in the counter affidavit and in Ext.P8.” Therefore, this Court has quashed Order No.EB/Law/W.P.9587/2005 dtd.8.7.2005 issued by the Board. This Court has also directed the Board to promote the petitioners in the said Writ Petition to the category of Meter Reader with effect from the date on which his juniors were promoted. The above judgment has been followed in the judgment dated 2.6.2009 in W.P.(c) Nos.4834 and 6300 of 2005 also. 7. Since the circular of the Board prescribing the date 7.2.2003 has already been set aside by this W.P.(C)No.11715/2005 6 Court, the stand of the Board that the petitioners could be given promotion only with respect to the said date cannot be sustained. Therefore, the petitioners in this Writ Petition are also entitled to be promoted with effect from the dates on which their immediate juniors were promoted as per Ext.P5 dated 15.1.2005. 8. The second contention of the petitioners is that the ratio of 60:40 among direct recruits and in- service candidates are to be followed, in view of the Long Term Settlement of 2000. In the counter affidavit filed on behalf of the Board, in paragraph 5, it has been stated as follows:- “As per Article VII of the Long Term Settlement 2000, the ratio between direct recruitment and by promotion is modified as 60:40 subject to the concurrence of the Kerala Public Commission. But the Kerala Public Commission has not agreed with the modified ratio and that they had not given any concurrence. Hence the Meter Reader can be appointed only as per the B.O. dated 15.10.1990 and as per this Board Order, only 25% vacancies can be set apart for in-service candidates.” W.P.(C)No.11715/2005 7 9. It is clear from the above that the implementation of the modification of the ratio for promotion was made subject to concurrence of the Kerala Public Service Commission. Since the Public Service Commission has not given concurrence for modification of the ratio, the said clause cannot be enforced. In the absence of the modification relied on by the petitioners, it is the case of the Board that the earlier ratio of 25:75 only can apply. The stand of the Board in this regard cannot be found fault with, in the absence of any evidence or material available to hold otherwise. Therefore, the contention of the petitioners regarding the enforcement of the modified ratio has to fail. However, the Board may take appropriate action for obtaining such concurrence, as early as possible. 10. In the result, this Writ Petition is allowed and the respondents are directed to promote the petitioners to the category of Meter Readers with W.P.(C)No.11715/2005 8 effect from the date on which their immediate juniors were promoted as per Order dated 15.1.2005. This shall be done within three months from the date of receipt of a copy of this judgment. The petitioners shall also be entitled to all consequential benefits including seniority and emoluments. The petitioners shall produce a copy of the judgment before the Kerala State Electricity Board, for compliance. K.SURENDRA MOHAN, JUDGE css/