IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 4TH JUNE 2010 / 14TH JYAISTHA 1932 WP(C).No. 35926 of 2009(I) --------------------------------- PETITIONER(S): --------------------- NAZARUDDIN.A, EDAPARAMBIL HOUSE, ERUVA SOUTH, KAYAMKULAM P.O., ALAPPUZHA. BY ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SMT.SURYA SASI RESPONDENT(S): ----------------------- 1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VIDYUTHA BHAVAN, THIRUVANANTHAPURAM. 2. THE SECRETARY, KERALA ELECTRICITY BOARD, VIDYUTHA BHAVAN, THIRUVANANTHAPURAM. 3. THE CHIEF ENGINEER, HUMAN RESOURCE MANAGEMENT (HRM), KSEB, PATTOM, THIRUVANANTHAPURAM. 4. THE CHIEF VIGILANCE & SECURITY OFFICER, KSEB, THIRUVANANTHAPURAM. 5. THE DEPUTY CHIEF ENGINEER, GENERATION CIRCLE, KSEB, THRISSUR. 6. THE EXECUTIVE ENGINEER, GENERATION DIVISION, KSEB, KAKKAYAM. ADV. SRI.K.S.ANIL, SC, KSEB FOR R1 TO 6 SRI.ASOK M.CHERIAN FOR R1 TO 6 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) 35926 / 2009 APPENDIX PETITIONER'S EXHIBITS Ext.P1 : COPY OF FIR REPORT SUBMITTED BY THE VIGILANCE AND ANTI-CORRUPTION BUREAU Ext.P2 : COPY OF THE SUSPENSION ORDER DATED 12.06.2006 Ext.P3 : COPY OF THE CHARGE MEMORANDUM DATED 28.05.2007 ALONG WITH A STATEMENT. Ext.P4 : COPY OF THE REPLY DATED 18.06.2007 Ext.P5 : COPY OF REPRESENTATION DATED 06.11.2006 Ext.P6 : COPY OF REPRESENTATION DATED 15.01.2007 Ext.P7 : COPY OF THE ORDER DATE 26.11.2007 PASSED BY THE 2ND RESPONDENT. Ext.P8 : COPY OF PROMOTION ORDER DATED 02.01.2008. Ext.P9 : COPY OF REPRESENTATION DATED 21.01.2008 TO THE 3RD RESPONDENT. Ext.P10 : COPY OF REPRESENTATION DATED 17.10.2008. Ext.P11 : COPY OF ORDERS DATED 28.09.2007 AND 11.06.2009 Ext.P12 : COPY OF PROMOTION ORDER DATED 08.11.2004 AND SUSPENSION ORDER DATED 19.08.2004. Ext.P13 : COPY OF SUSPENSION ORDER DATED 08.05.06 Ext.P14 : COPY OF JUDGMENT IN W.P.(C).NO.20216/06 OF THIS HON'BLE COURT. Ext.P15 : COPY OF JUDGMENT DATED 22.11.2005 IN W.A.NO.2362/05 FILED BY THE KSE BOARD Ext.P16 : COPY OF JUDGMENT DATED 10.07.2006 IN W.P(C).NO.16765/06 FILED BY ONE NOUSHAD. A. RESPONDENT'S EXHIBITS : Nil // True Copy // PA to Judge. jg/. ANTONY DOMINIC, J. ------------------------- W.P.(C.) No.35926 of 2009 (I) --------------------------------- Dated, this the 4th day of June, 2010 J U D G M E N T The petitioner is a Sub Engineer in the Kerala State Electricity Board, aspiring promotion to the post of Assistant Engineer. Ext.P8 is the list of eligible Sub Engineers prepared for effecting temporary promotions to the post of Assistant Engineers. In Ext.P8, the petitioner's name has been included at Serial No.31. Although several persons, who are included in Ext.P8 list, were temporarily promoted as per Rule 31 of the KS & SSR, the petitioner's name was not considered for the reason that disciplinary proceedings were pending against him. 2. Ext.P2 is the order placing the petitioner under suspension. However, the petitioner submitted that by Ext.P7 order he was reinstated. On reinstatement, the petitioner contended that, his ineligibility, which justified his exclusion from temporary promotion, ceased to exist and therefore he should be given the benefit of temporary promotion. It is with this grievance, this writ petition has been filed. WP(C) No.35926/2009 -2- 3. The learned counsel for the petitioner has relied on Exts.P14, P15 & P16 judgments of this Court, where, according to him, identical claims raised by employees of the KSEB itself have been considered by this Court and the contentions were upheld. 4. However, learned standing counsel for the Board contended that mere inclusion in the select list does not confer any right on a person for promotion. He also relied on the Apex Court judgment in C.O.Arumugam and Others v. State of Tamil Nadu and Others(1999 Supp (2) SCC 199) to contend for the position that the appointing authority can justifiably exclude a person from promotion so long as disciplinary proceedings are pending against him. It is contended that charge sheet has been issued to the petitioner and so long as proceedings are pending against him, he cannot demand that he should be promoted either permanently or temporarily. 5. As already stated, promotions, which are effected from Ext.P8 list are temporary and in terms of Rule 31 of the KS & SSR. Once a select list is prepared, except those who are under suspension, rest of the persons included in the list are normally WP(C) No.35926/2009 -3- eligible for temporary promotion. It has been so held by this Court in the judgments relied on by the learned counsel for the petitioner. As far as the petitioner is concerned, with Ext.P7 order reinstating the petitioner, the ineligibility due to suspension has ceased to exist. No other justifiable reason is stated to exclude the petitioner. If that be so, the petitioner is entitled to claim the benefit of temporary promotion, by virtue of his inclusion in Ext.P8 list. True, in the Apex Court judgment relied on by the learned Standing Counsel for the Board, it has been held that so long as disciplinary proceedings are pending, the appointing authority is entitled to exclude the person from promotion. 6. However, insofar as the petitioner is concerned, his entitlement will depend to Rule 31. Rule 31 only excludes, those who are under suspension and those excluded for justifiable reasons. In my view, his case is covered by Exts.P14, P15 & P16 judgments and the principles laid down by the Apex Court in the judgment relied on by the learned Standing Counsel for the Board are not of any relevance in this case. In view of the above, I dispose of the writ petition directing the WP(C) No.35926/2009 -4- respondents to effect temporary promotion to the petitioner on the basis of his inclusion in Ext.P8 select list to the post of Assistant Engineer. This shall be done as expeditiously as possible, at any rate, within four weeks of production of a copy of this judgment. This writ petition is disposed of as above. (ANTONY DOMINIC, JUDGE) jg