Kerala State Electricity Board v. R. Sathish Kumar
2024-09-03
ANIL K.NARENDRAN, HARISANKAR V.MENON
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DigiLaw.ai
JUDGMENT : Harisankar V. Menon, J. These connected writ appeals are filed under Section 5 of the Kerala High Court Act, 1958, against a common judgment dated 18.01.2016 in W.P.(C)Nos.20916 of 2005 and connected cases, rendered by a learned Single Judge of this Court. 2. Since the learned Single Judge has referred to the facts in W.P.(C)No.20916 of 2005 while rendering the impugned judgment, for the purpose of disposal of these appeals, we also refer to the facts available in W.A.No.1020 of 2016, filed against W.P.(C)No.20916 of 2005. 3. The petitioners in W.P.(C)No.20916 of 2005 are stated to be employed as Office Attendant-II with the 1st respondent Kerala State Electricity Board (for short ‘the Board’). By Ext.P1 Board order dated 29.01.1971, the method of appointment and qualifications to the post of lower Division Clerk in the Board were prescribed. As per the above order, 15% of vacancies were set apart for promotion of Lower Grade employees like the Attenders, prescribing the eligibility criteria as pass in SSLC with not less than 40% marks, not less than 5 years continuous service under the Board, and a pass in the suitability test conducted by the 4th respondent Kerala Public Service Commission. By Ext.P2 dated 14.07.1995, in consultation with the Kerala Public Service Commission, the Board prescribed the following conditions for appointment to the post of Junior Assistant/Cashier from among the Lower Grade employees of the Board against the 15% of vacancies. (i) Pass in SSLC (ii) 5 years experience under the Board (3 years for Pre-Degree holders) (iii) Pass in the suitability test with 40% marks, conducted by the Kerala Public Service Commission. 4. In the meantime, the Office Attenders, etc., who were appointed in the Board being Sports persons were waived from clearing the eligibility test, by Ext.P4 order issued by the Board dated 06.07.2005. In the said order, it is held as under: “Having considered the note read as 2nd paper above, sanction is accorded to exclude the sports recruits in the Board from the requirement of Suitability Test for promotion to the cadre of Junior Assistant/Cashier.
In the said order, it is held as under: “Having considered the note read as 2nd paper above, sanction is accorded to exclude the sports recruits in the Board from the requirement of Suitability Test for promotion to the cadre of Junior Assistant/Cashier. 2) Sanction is also accorded to promote the sports recruits in the Board to the cadre of Junior Assistant/Cashier w.e.f. 01-07-2005, as was done prior to 14-07-1995, following the guidelines stated below: “Sports recruits, who have passed SSLC and having length of service of 5 years of Pre-degree having length of service of 3 years, in the pay scale of and below that of Junior Assistant will be appointed as Junior Assistant/Cashier. They will be imparted with training for 6 months in the post of Junior Assistant/Cashier and will be regularized in that post on satisfactory completion of the training and prescribed probation period.” 3) Necessary posting orders will be issued by the Chief Engineer-HRM, K.S.E.Board.” On the basis of the Ext.P5 Board order, 44 sports persons were provisionally promoted as Cashiers. These 44 persons have been impleaded in the writ petition as respondents 5 to 46. 5. The petitioners have filed W.P.(C)No. 20916 of 2005 under Article 226 of the Constitution of India seeking a writ of certiorari quashing Exts.P4 to P6 orders and also for a declaration that those workmen recruited in the sports quota have to possess the qualifications prescribed in Ext.P2 Board order for being promoted as Junior Assistant/Cashier. It was also prayed that, the 4th respondent in the writ petition-the Kerala Public Service Commission-may be directed to conduct suitability test for selecting the candidates for promotion as Junior Assistant/Cashier in the Board in the 15% quota for the Lower Grade employees. 6. The party respondents in the writ petition filed a counter affidavit, relying on Rule 39 of the Kerala State and Subordinate Service Rules, 1958 (for short ‘KS & SSR’) and contending that there can be relaxation of the general provisions applicable in the case of a group of persons or an individual, provided the exemption granted is just and equitable. Ext.R5(a) Government Order ratifying the decision to waive the suitability test in the case of sports persons was also relied upon. 7.
Ext.R5(a) Government Order ratifying the decision to waive the suitability test in the case of sports persons was also relied upon. 7. The learned Single Judge of this Court by the impugned judgment dated 18.01.2016, found that by virtue of the proviso to Rule 4(j) of the Kerala Public Service Commission (Additional Functions) (Consultation) Rules, 1966 (for short ‘the Rules’), the relaxation in the qualification without consultation with the Kerala Public Service Commission have to be confined to 15 persons. Therefore, the impugned orders were upheld only to the extent of permitting 15 such promotions of sports quota recruits in an year. It was further directed that the Board would have to rework the promotions on the basis of the afore declaration. Finding thus, all the writ petitions were allowed. 8. Aggrieved by the above judgment dated 18.01.2016, the Kerala State Electricity Board (1st respondent in the writ petitions) has filed W.A.Nos.1356, 1625 and 1660 of 2016. Party respondents in W.P.(C)No.20916 of 2005 and 21518 of 2005 have filed W.A.Nos.1020 and 997 of 2016, respectively. W.A.No.1018 of 2016 is filed by a third party after obtaining leave of this Court, pointing out that the impugned judgment affects his prospects for promotion in the Board. W.A.No.1911 of 2016 is filed by the petitioners in W.P.(C)No.20916 of 2005, not satisfied with the prescription of 15 persons as eligible for promotion from among the sportsmen without clearing the suitability test. 9. We have heard the learned Standing Counsel for the Electricity Board, the learned counsel for the appellants, and the learned counsel representing the respondents herein. 10. The main contention raised by the learned counsel for the appellants is that the learned Single Judge ought to have noticed that Rule 4(j) of the Rules is only applicable as against, “appointment” of persons in entry cadres and not with reference to “promotion” after the entry in service. It is also pointed out with reference to Rules 3 and 4(c) of the Rules, that the exemption from the suitability test by the Board without consultation of the Kerala Public Service Commission was perfectly legal.
It is also pointed out with reference to Rules 3 and 4(c) of the Rules, that the exemption from the suitability test by the Board without consultation of the Kerala Public Service Commission was perfectly legal. The learned counsel for the Kerala State Electricity Board points out that from 2000 to 2005, there was a ban on fresh appointments to the post of cashier and therefore there is a backlog of at least 65 vacancies and going by the limit of 15 numbers fixed by the learned Single Judge, the Board is competent to effect 15 x 5 years = 75 promotions and the 44 promotions effected was within the permissible limit. The learned counsel for the 3rd party, who filed an appeal with leave has also adopted the submissions made as above. The counsel for the appellant in W.A.No.1911 of 2016, on the other hand, points out that the learned Single erred in permitting the Board to effect even 15 promotions and according to him, the Board is not competent to dispense with the suitability test under any circumstances. 11. We have considered the rival submissions and the relevant records. The following two issues arise for consideration in these appeals: (i) How far proviso to Rule 4(j) of the Rule would apply to the facts and circumstances of the case? (ii) Is the Board entitled to issue Ext.P4 by excluding the sports recruits from the requirement of the suitability test for promotion to the cadre of Assistants/Cashiers? 12. The dispute in these appeals is with reference to Ext.P4 order issued by the Board dated 06.07.2005. By the said order the Board waived the suitability test as regards sports recruits. The learned Single Judge, while disposing of the writ petitions referred to Rule 4(j) of the Rule and the proviso thereto. A reading of the above Rule makes it clear that the same is with reference to “appointment” of persons to various posts. Here, the situation is not as regards “appointment of persons”. Instead, the dispute was with reference to “promotion” of persons already appointed under the Board. There is substantial difference between “appointment” and “promotion”. Ext.P1 issued in the year 1971 pertaining “recruitment” of LD Clerks makes the position clear. Under Ext.P1, LD clerks are appointed either through “direct recruitment” or “by transfer/promotion from lower division typist”.
Instead, the dispute was with reference to “promotion” of persons already appointed under the Board. There is substantial difference between “appointment” and “promotion”. Ext.P1 issued in the year 1971 pertaining “recruitment” of LD Clerks makes the position clear. Under Ext.P1, LD clerks are appointed either through “direct recruitment” or “by transfer/promotion from lower division typist”. Ext.P4 also speaks about “promotion” of sports recruits already working under the Board as Junior Assistant/Cashier by waiving the requirement for suitability test. 13. In the light of the above discussion, we notice that Rule 4(j) is only with reference to “appointment” in various posts under the Board. It is only with respect to such fresh appointments/ recruitments under the Board the question of non-consultation with the Kerala Public Service Commission gets attracted. However, in the cases at hand, since the question involved is with reference to “promotion”, the reference made by the learned Single Judge to the proviso to Rule 4(j) of the Rule does not appear to be apposite. 14. Further, Rule 4 provides the situations where it is not necessary for the Commission to be consulted. Rule 4(c) and Rule 4(j) of the Rule have to be considered together. They read as under; “Rule 4. It shall not be necessary for the Commission to be consulted: xxx xxx xxx (c) in regard to the suitability of candidates for promotion within the same service or for transfer from one subordinate service to another such service; xxx xxx xxx (j) in regard to the appointment of persons who are proficient in sports and games to the following posts:- 1. Junior Engineer 2. 1st Grade Overseer 3. Lineman 4. Lower Division Clerk/Cashier 5. Lower Division Typist 6. Driver 7. Tracer 8. Peon Provided that the persons so appointed shall have the minimum qualifications including age prescribed for the posts, and that the total number of persons appointed under this sub-rule in any year shall not exceed fifteen;” (underlining supplied) 15. Thus, it is quite clear that Rule 4 of the Rule visualizes "promotion" and "appointment" separately. Rule 4(c) of the Rule specifically covers situations where a candidate is being considered for "promotion" within the same service. At the same time Rule 4(j) of the Rule applies with respect to "appointment of persons", who are proficient in sports and games to various posts.
Rule 4(c) of the Rule specifically covers situations where a candidate is being considered for "promotion" within the same service. At the same time Rule 4(j) of the Rule applies with respect to "appointment of persons", who are proficient in sports and games to various posts. Therefore, this also proves that under the Rules "appointment" and "promotion" are not considered similar, quite rightly. Therefore, we are clear in our mind that the learned Single Judge ought not to have referred to the proviso to Rule 4(j) of the Rule while disposing of the writ petitions, wherein the question for consideration was with reference to "promotion" of persons who are already in the service of the Board. 16. We also notice South Central Railway Employees Cooperative Credit Society Employees’ Union, Secunderabad v. Registrar of Cooperative Societies and Others [ (1998) 2 SCC 580 ], wherein the Apex Court had occasion to consider an issue where certain reservations were applicable only for initial appointments alone. Considering this issue the Apex Court held as under; “5. On a plain reading of the aforesaid notification it is crystal clear that the direction of the Governor was to follow the principle of reservation in appointments to all posts in all cooperative institutions to be filled by direct recruitment either on temporary or on regular basis It is undisputed before us that the promotional posts in the societies cannot be filled up by direct recruitment, and therefore, the only conclusion that can be arrived at is that the aforesaid direction of the Governor to apply the principles of reservation is only in respect of appointments in the initial cadre and not to any appointments in the promotional cadre. The Division Bench of the High Court while giving wide interpretation to the expression "appointment" in the notification have completely overlooked the latter part of the said notification to the effect "to be filled by direct recruitment on temporary or regular basis". The interpretation given by the High Court to the notification only by giving a wide interpretation to the word "appointment" makes the latter part of the notification wholly redundant or surplusage. It is a cardinal a principle of construction not to brush aside words used in a statute or in a notification issued under a statute and full effect must be given to the entire words of an instrument.
It is a cardinal a principle of construction not to brush aside words used in a statute or in a notification issued under a statute and full effect must be given to the entire words of an instrument. Applying the said principle to the notification which is for consideration before us, we had no hesitation to come to the conclusion that under the said notification no direction has been given by the Governor to apply the policy of reservation in appointments to the promotional posts. The High Court, therefore, committed serious error of law in interpreting the aforesaid notification and by holding that the policy of reservation has been made applicable to the promotional posts also. We accordingly set aside the impugned judgment of the High Court as well as the judgment of the learned Single Judge and hold that though it was open to the Government to apply the principle of reservation but by the impugned notification it has not been made applicable to the promotional posts available in the society. This appeal accordingly is allowed and the writ petition filed by the private respondents stands dismissed. There will be no order as to costs.” Thus, the Apex Court noticed the difference between “appointment” and “promotion” with specific reference to the entirety of the notification. In the case at hand also, Rule 4, when read in its entirety, makes it clear that “appointment” and “promotion” are to be treated differently. 17. We also notice that valid reasons have been provided by the Board as well as the Government for having waived the suitability test as regards those who are already in the service of the Board under sports quota. The Government found that the sports personnels are usually appointed under the Board at a tender age of around 18 to 21 years in between their academic careers and on account of the preoccupation with coaching camps/tournaments, they may not be in a position to continue their academics on account of which their chances for further career advancement in the Board get frustrated. The sports personnel are appointed in the Board considering their services rendered to the State/Nation in the field of sports and games.
The sports personnel are appointed in the Board considering their services rendered to the State/Nation in the field of sports and games. The very same consideration is being extended with respect to the promotions also, so that they may have at least some limited career advancement in the service, as otherwise, their service in the Board would stagnate. Therefore, on account of the valid reasons highlighted by the Board/Government for having waived the suitability test as regards the sports personnel also, we are of the opinion that the writ petitions ought not to have been entertained. In the light of the above findings, we set aside the impugned judgment of the learned Single Judge dated 18.01.2016, allowing the captioned writ appeals. Consequently, W.P.(C) Nos.20916, 21518 and 25969 of 2005, against which these writ appeals were filed, would stand dismissed.