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2017 DIGILAW 232 (KER)

T. K. DASAN, SUB ENGINEER, KERALA STATE ELECTRICITY BOARD, ELECTRICAL SECTION, KALAMASSERRY, ERNAKULAM v. KERALA STATE ELECTRICITY BOARD LIMITED. , REPRESENTED BY ITS MANAGING DIRECTOR, KERALA STATE ELECTRICITY BOARD

2017-02-01

P.V.ASHA

body2017
JUDGMENT : All these writ petitions relate to the reversion of Sub Engineers, who were promoted as per Ext.P3 order and appointed under the 10% quota from among Overseers with 5 years service. As common question arises in these writ petitions, these writ petitions are heard together and are being disposed of by this common judgment. Parties and documents referred to are as described in WP(C) No.859 of 2017. 2. Petitioners joined service as Electricity Workers (Mazdoor)/Junior Line Assistants under the respondent Board. Subsequently they were promoted as Overseer (Electrical). Ext.P1 is the order which provides for the method of appointment to the post of Sub Engineer (Electrical), as amended in the year 1981. As per the Board order Ext.P1, the method of appointment to the post of Sub Engineer Electrical is 40% by direct recruitment and 60% by promotion. 10% out of the 60% quota for promotion is to be filled up from among qualified Overseers with 5 years service. The qualification prescribed for promotion from among IInd Grade Overseers for promotion under the 10% quota is as follows: 1. Certificate in electrical Engineering obtained after passing an examination conducted by a competent authority after having undergone course of study of not less than 2 years from Technical school or a Technical Training Centre or an institution recognized for the purpose by Government and with not less than five years of service as Lineman/Second Grade Overseer (Electrical) under the Board. 2. Certificates obtained after having passed an examination conducted by the competent authority in the Trade of Lineman/Wireman/Electrician after 18 months course in ITI and six months in plant training and with not less than five years of service as Lineman/Second Grade Overseer (Electrical) under the Board. 3. MGTE/KGTE Group certificate in Electrical Engineering covering subjects viz. a. Electric Light & Power (Higher) b. Applied Mechanic (L) c. Heal Engine (L) and d. Machine drawing (L) and with not less than 5 years of service as Lineman/Second Grade Overseer (Electrical) under the Board. 3. Petitioners were promoted as Sub Engineers as per Ext.P3 order dated 9.2.2011 under the 10% quota. Their promotions were challenged in WP(C) No.29243 of 2011 and connected cases. The petitioners therein challenged the promotion on the ground that the petitioners in these writ petitions and others, who were promoted as per Ext.P3 order, did not have the qualification prescribed in Ext.P1 Board Order dated 23.1.1981. Their promotions were challenged in WP(C) No.29243 of 2011 and connected cases. The petitioners therein challenged the promotion on the ground that the petitioners in these writ petitions and others, who were promoted as per Ext.P3 order, did not have the qualification prescribed in Ext.P1 Board Order dated 23.1.1981. The main objection was that even though the petitioners have certificate in the trade of Lineman/Wireman/Electrician after undergoing 18 months course in Industrial Training Institute, none of them did have the six months inplant training. By Ext.P4 judgment a learned single Judge of this court disposed of the writ petitions directing to take a decision as to the qualification of the Overseers for promotion to the cadre of Sub Engineers within a period of three months and it was ordered that impugned promotions challenged in those writ petitions would be subject to decision of the Board. All of them were allowed to continue in the promoted post, while directing that further promotions shall be only after a decision was taken by the Board in respect of the qualification. 4. The writ petitioners therein filed W.A.No.1004 of 2014 and connected cases. By Ext.P5 judgment in the above writ appeals, the Division Bench found that respondents 3 to 35 in those writ petitions covered by Ext.P3 order, were granted promotion without looking into their qualification. From the counter affidavit filed by the Electricity Board, the Division Bench noticed the contention of the Electricity Board that there was no necessity for inplant training as alleged by the petitioners therein and that the promotions were made in accordance with the Board orders issued from time to time in terms of the long term settlement. According to the Board, the qualification for appointment of Meter Reader was ITI and therefore the promotion of Overseers under the 20% quota to the post of Sub Engineer (Electrical) should have the same qualification of the 40% quota of Meter Reader to the Sub Engineer (Electrical). The Board has stated that there is 20% quota for Meter Reader for promotion as Overseer out of the 60% quota earmarked for promotion. It was under the above circumstances, that the Board stated that when the Meter Readers require only ITI for promotion as Overseers under the 20% quota, the qualification would be the same for promotion as Sub Engineer (Electrical) also. It was under the above circumstances, that the Board stated that when the Meter Readers require only ITI for promotion as Overseers under the 20% quota, the qualification would be the same for promotion as Sub Engineer (Electrical) also. Petitioners and others who were promoted as per Ext.P3 had also filed counter affidavit contending that they were fully qualified and their appointments were made in accordance with the Board Order. After analysing Board order Ext.P1, the Division Bench found that the select list for promotion as Sub Engineers was not prepared in accordance with the rules governing the same especially with regard to the qualification. In the above circumstances, the Division Bench found that the judgment of the learned single Judge to the extent it directed the Board to consider the question of qualification and to retain the promotees was not proper and hence it set aside the order Ext.P3. In paragraph 22 of the judgment, the Division Bench held as follows: Under such circumstances, it is clear that no deviation has been made from the qualification prescribed in the Board order dated 23.1.1981 and those candidates, who do not possess the said qualification, are not entitled to be selected for the post of Sub Engineer (Ele.). The Board, having selected such candidates in terms of Ext.P5 select list, the same is liable to be set aside. 5. In paragraph 24 it was further found that the decision taken by the Board in treating the qualification of Overseer (Electrical) in the feeder category as similar to that of Meter Reader was erroneous. Accordingly the appeals were allowed and the order granting promotion to the petitioner and others in Ext.P3 were quashed. Ext.P3 in this order was Ext.P5 in the judgment in WP(C) No. 9243 of 2011. The petitioner and others herein thereafter filed R.P.No.1106 of 2015. Pointing out that the judgment in the writ appeal would affect several persons, the petitioners and others approached the Division Bench in a review petition, which was dismissed with the following observations. 8. We are of the view that merely for the reason that the judgment affects several persons, we should exercise the power of review. If any changes are to be made to the Board order dated 23.1.1981, it is for the Board to take a decision. However, as matters stand today, the Board has taken a decision to comply with the judgment. If any changes are to be made to the Board order dated 23.1.1981, it is for the Board to take a decision. However, as matters stand today, the Board has taken a decision to comply with the judgment. We only observe that the judgment shall not preclude the Board to take an appropriate decision in future. 6. In implementation of the judgment in writ appeal the Board passed Ext.P7 order by which it decided to comply with the judgment in the writ appeal and directed the Chief Engineer to take necessary action in compliance of the judgment. In the meanwhile SLP(C) No.27325 of 2015 against the judgment in Writ Appeal was filed before the Supreme Court, which was dismissed as per order dated 28.9.2015. Thereafter the Chief Engineer issued Ext.P9 order dated 17.3.2016 in which it was stated that "promotion order dated 9.2.2011 placed as Annexure to this order is hereby quashed". It was stated therein that steps are taken to invite proforma for promotion from Overseer to Sub Engineer (Electrical) on the basis of Board Order dated 23.1.1981. The annexure to the order dated 9.2.2011 was the promotion granted to 35 persons including the petitioners as Sub Engineers. The petitioners thereupon approached this court in WP(C) No.13308 of 2016 challenging their reversion. The learned single Judge initially granted stay of reversion. However, subsequently noticing that the impugned order was passed in implementation of the judgment -Ext.P5 in W.A.No.1004 of 2014, vacated the interim order. The petitioners thereupon challenged that order in W.A.No.1794 of 2016. By judgment dated 13.12.2016 that writ appeal was also dismissed as per Ext.P11 judgment. The Division Bench also found that the Board had taken a decision on 5.3.2016 itself to comply with the judgment in the writ appeal setting aside the promotions effected as per Ext.P3. Seeing that the impugned orders were passed in implementation of the judgment in the writ appeal, the Division Bench did not interfere with the order passed by the learned single Judge vacating the stay. 7. Petitioners herein pointed out the observations in R.P.No.1106 of 2015 of the Division Bench that it would be open for the appellants to pursue the matter before the Board, if they so choose as directed in the revision petition. 7. Petitioners herein pointed out the observations in R.P.No.1106 of 2015 of the Division Bench that it would be open for the appellants to pursue the matter before the Board, if they so choose as directed in the revision petition. It is thereafter that the present batch of writ petitions are filed, pointing out that the Chief Engineer has in Ext.P12 report stated that there would not be anybody who is qualified for promotion, as provided in Ext.P1 order. 8. Heard both sides at length. 9. In these writ petitions, the petitioners have produced Ext.P12 note of the Chief Engineer which the petitioners claimed that the Chief Engineer has submitted to the Chairman and Managing Director. Relying on this note mainly the following portions "unless we co endeavor to modify the BO dated 23.1.1981 it will create many complications in the promotions already given from 1981 onwards by following the BO dated 23.1.1981 including the promotions given from the post of Meter Reader. Not only the 35 overseers reverted as per order dated 29.11.2016, all employees promoted till now having NCVT certificate are also going to be affected if the BO dated 23.1.1981 does not modify. It will have far reaching consequences in the functioning of KSEB Ltd. therefore there is no alternative other than to modify the BO dated 23.1.1981 with retrospective effect by including the certificate from National Council for Vocational Training (NCVT) (both Private and Regular) in Electrician/Wireman/Electronics with 5 years' service in feeder category under KSE Board as one of the technical qualifications. This is the only method to overcome the present hurdle by which we can promote qualified Overseers(Ele) in the available vacancies of Sub Engineer (Ele) based on their seniority and regularise all promotions made from 1981 onwards in respect of employees having certificate from NCVT it is reliably learnt that no employee is available in the Gradation list at present with 'Certificate obtained after having passed an examination conducted by the competent authority in the trade of Lineman/Wireman/Electrician after 18 months course in ITI and six months in plant training and with not less than five years of service as Lineman/Second Grade Overseer (Ele) under the Board" since the above course was stopped during 1969 itself. Therefore there is no legal impediment to move in the aforesaid direction", the learned counsel for the petitioners submits that there is no qualified hands among Overseer Grade-II who is having qualification prescribed in Ext.P1 Board order. 10. In the light of the contentions raised by the learned counsel for the petitioners, that there is no Overseer Grade II with the qualification prescribed in Ext.P1 Board order who is eligible for promotion under the 10% quota for them, an interim order was passed on 10.1.2017 directing that petitioners shall not be reverted for a period of two weeks in case there is nobody qualified for promotion to the post of Sub Engineer (Electrical) under the 10% quota in accordance with 1981 Order (Ext.P1). When the writ petition came up for extension of the interim order the additional respondents who got impleaded opposed the prayer for extension. The matter was argued at length. The additional respondents pointed out that the promotion granted to the petitioners were already set aside by this court and the issue is covered by the judgment Ext.P5 as well as Ext.P11 apart from the order dismissing SLP against Ext.P5 judgment. 11. However, the contention of the learned counsel is that it is only the 35 persons included in Ext.P3 order that the Board is proceeding with the reversion. According to them there are several persons who were already promoted with the very same qualification as that of petitioners and Board is not proceeding against them. It is also their case that the petitioners also do not have the qualification for promotion. Much reliance was placed on Ext.P12 note said to have been submitted by the Chief Engineer in which the absence of qualified hands is pointed out and the consequences on account of the implementation of Ext.P1 as interpreted in writ appeal judgment have been explained suggesting an amendment to the Board order. 12. The Electricity Board has not filed any counter affidavit. According to the learned standing counsel they have issued the orders impugned in implementation of the judgment in the writ appeal. It is also pointed out that the contempt petitions were pending for not implementing orders. 13. 12. The Electricity Board has not filed any counter affidavit. According to the learned standing counsel they have issued the orders impugned in implementation of the judgment in the writ appeal. It is also pointed out that the contempt petitions were pending for not implementing orders. 13. In the light of the inter-parte judgments Ext.P5 judgment in W.A.No.1004 of 2014 and connected cases and in Ext.P11 judgment in W.A.No.1794 of 2016, I am of the considered view that all these contentions raised as at present by the petitioners were contentions available for them when their promotions were under challenge in the 1st writ petition. At any rate as pointed out by them the Electricity Board has not taken any decision in the light of the observations in Ext.P6 judgment in the review petitions. Under the above circumstances, I do not find any reason to interfere with the orders passed by the Electricity Board in Ext.P13 or for a declaration that the qualification which the petitioners possess or for a direction to the respondents to modify order amending qualification. In the above circumstances, WP(C) No.859 of 2017, 13308 of 2016 and 2172 of 2017 are dismissed.