Kerala High Court
Udayakumar P.K vs Kerala State Electricity Board on 9 September, 2013
Author: A.V.Ramakrishna Pillai
Bench: A.V.Ramakrishna Pillai
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI
MONDAY, THE 20TH DAY OF OCTOBER 2014/28TH ASWINA, 1936
WP(C).No. 4564 of 2012 (U)
---------------------------
PETITIONERS:
------------
1. UDAYAKUMAR P.K.
S/O KUMARAN, OVERSEER, ELECTRICALO SECTION
CHERAI, NOW RESIDING AT POTTAYIL HOUSE, EZHIKKARA P.O.
NORTH PARAVOOR.
2. UNNIKRISHNAN S.C,
S/O. K.C. THAMPI, OVERSEER, ELECTRICAL SECTION
PERINYANAM, RESIDING AT SIVAVILAS, EZHIKKARA P.O
NORTH PARUR, ERNAKULAM.
3. CHANDRASEKHARAN K.R,
S/O RAMAKRISHNA MARAR, OVERSEER (ELECTRICAL), SECTION
VELLOORKUNNAM RESIDING AT KUTTIKKATTIL HOUSE
THRIKKALATHOOR P.O-683577.
4. V.S. UNNIKRISHNAN,
S/O. SREEDHARAN, OVERSEER, ELECTGRICAL SECTION
THRIKKAKKARA, NOW RESIDING AT VATHUVETTIL, KUMBALAM.
5. V. MANOJKUMAR,
S/O VELAPPAN NAIR, OVERSEER, ELECTRICAL SECTION
THRIPUNITHURA, NOW RESIDING AT KONATTUR HOUSE
ERUMBANAM P.O. THRIPUNITHURA.
BY ADVS.SRI.A.J.VARGHESE
SRI.J.JULIAN XAVIER
SRI.FIROZ K.ROBIN
SRI.JOSE. V.V.
SRI.C.P.SUDHAKARA PRASAD (SR.)
RESPONDENTS:
------------
1. KERALA STATE ELECTRICITY BOARD
REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVAN,
PATTOM, THIRUVANANTHAPURAM-695 004.
2. THE CHIEF ENGINEER (H.R.M)
KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVAN
PATTOM, THIRUVANANTHAPURAM-695004.
3. KERALA PUBLIC SERVICE COMMISSION,
REPRESENTED BY ITS SECRETARY
THIRUVANANTHAPURAM-695004.
4. STATE OF KERALA
REP. BY SECRETARY, DEPARTMENT OF POWER, SECRETARIAT
THIRUVANANTHAPURAM.PIN 695001.
WPC No.4564 of 2012 2
Addl.R5. SRI.PRAMOD.T.S.
WORKING AS OVERSEER, ELECTRICAL CIRCLE, KOTTAYAM
KERALA STATE ELECTRICITY BOARD, ELECTRICAL CIRCLE
KOTTAYAM,KOTTAYAM DISTRICT
RESIDING AT THADATHIL HOUSE
NATTAKAM, KOTTAYAM, PIN -686001.
(ADDL.R5 IS IMPLEADED IN A REPRESENTATIVE CAPACITY FOR
THE CERTIFICATE HOLDERS VIDE ORDER DATED 09/09/2013 IN IA
12107/2013.)
Addl.6. AUGUSTIN.A.J.
OVERSEER, ELECTRICAL SECTION, KOOTICKAL
S/O.JOSEPH, AGED 47 YEARS, ALAKKAPARAMBIL
VELANILAM.P.O., KOOTICKAL, KOTTAYAM DISTRICT.
Addl.7. ROY MATHEW
OVERSEER, ELECTRICAL SECTION, UPPUTHARA
AGED 46 YEARS, S/O.MATHEW, PATTUPARA HOUSE
AYYAPPANKOVIL.P.O., MARYKULAM, IDUKKI.
(ADDL. R6 & R7 ARE IMPLEADED AS PER ORDER DATED 20/12/2013
IN IA 17322/2013.)
R1,R2 BY ADV. SRI.K.S.ANIL, SC, KSEB
R3 BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC
R4 BY GOVERNMENT PLEADER SRI.P.V.ELIAS
R5 BY ADV.A.J.VARGHESE
ADDL 6 & 7 BY ADV. SRI.GEORGE ZACHARIAH ERUTHICKEL
ADDL. BY ADV. SRI.S.RAJASEKHARAN NAIR
ADDL. BY ADV. SRI.RAJU SEBASTIAN VADAKKEKKARA
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 20-10-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WPC No.4564 of 2012 3
APPENDIX
PETITIONER'S EXHIBITS:
EXT.P1 PHOTOCOPY OF THE AMENDED ORDER NO.EC IV 1703/71 DATED
TRIVANDRUM 1/11/1971
EXT.P2 COPY OF THE CIRCULAR NO.EO 2/727/SE/99 DATED 24-11-1999
ISSUED BY THE CHIEF ENGINEER HRM
EXT.P3 PHOTOCOPY OF THE PROFORMA FOR REPORTING OF 10% VACANCIES
TO THE PSC
EXT.P4 PHOTOCOPY OF THE B.O NO MV 3600/67/28-12-1967
EXT.P5 PHOTOCOPY OF THE B.O NO.AR III 36591/78 DATED 23-1-1981
EXT.P6 PHOTOCOPY OF THE B.O NO.934/98(ESTT.II/893/97 DATED
THIRUVANANTHAPURAM 28-04-1998
EXT.P7 PHOTOCOPY OF THE JUDGMENT IN W.A NO.786/2001
EXT.P8 PHOTOCOPY OF THE JUDGMENT IN W.A NO.326/2002 OF THE
HIGH COURT OF KERALA
EXT.P9 PHOTOCOPY OF THE ORDER B.O.(CM) NO.2490/2009 DATED
26-09-2009 ISSUED BY THE BOARD SECRETARY.
EXT.P10 PHOTOCOPY OF THE L.A(S) III/12005/2010 DATED
THIRUVANANTHAPURAM 11-2-10
EXT.P11 PHOTOCOPY OF THE CIRCULAR NO.LF.IV/6187/2011 DATED
26-09-2011
EXT.P12 PHOTOCOPY OF THE CIRCULAR NO.B1-17175/2004/CEI DATED
18-09-2004 ISSUED BY THE GOVERNMENT OF KERALA
EXT.P13 PHOTOCOPY OF THE LETTER NO CEA/E&C/1/20/2011 LEGAL/363
DATED 26-05-2011 ALONG WITH ANNEXURE
EXT.P14 PHOTOCOPY OF THE QUESTION ASKED UNDER THE RIGHT TO
INFORMATION ACT DATED 14-03-2011 ADDRESSED TO THE
PSC'S INFORMATION OFFICER.
EXT.P15 PHOTOCOPY OF THE LETTER NO.I.D.S. 194) 8961/11/G.W
DATED 31-03-2011 OF THE INFORMATION OFFICER OF THE PSC
EXT.P16 PHOTOCOPY OF THE REPRESENTATION DATED 4-6-2011
EXT.P17 PHOTOCOPY OF THE LETTER NO IDS 1(4) 8951/11 G.W
DATED 17-06-2011
EXT.P18 PHOTOCOPY OF THE NOTIFICATION DATED 31-12-2011 IN
RESPECT OF CATEGORY NO.487/2011
EXT.P19 PHOTOCOPY OF THE BOARD ORDER NO.B.O.RL.3526/1973(2)
DTD.18.4.1975, THIRUVANANTHAPURAM.
WPC No.4564 of 2012 4
EXT.P20 COPY OF THE LETTER NO.ESTT.II-15218/89 DTD.28.8.1990
ISSUED BY THE SECRETARY, KSEB ADDRESSED TO THE
SECRETARY OF THE PSC.
EXT.P21 COPY OF THE LETTER NO.III(3)1054/90/CW DTD.30.9.1991
ISSUED BY THE THIRD RESPONDENT.
EXT.P22 COPY OF THE LETTER SENT BY THE KERALA STATE ELECTRICITY
BOARD TO THE GOVERNMENT.
EXT.P22(A) READABLE COPY OF EXT.P22 LETTER SENT BY THE KERALA
STATE ELECTRICITY BOARD TO THE GOVERNMENT.
EXT.P23 PHOTOCOPY OF LETTER NO.ESTT.II/15218/89 DTD.7.4.2000
SENT BY THE SECRETARY, KSEB TO THE GOVT.
EXT.P24 PHOTOCOPY OF THE LETTER NO.3613/A2/2000/PD DATED
2.2.2001 ISSUED BY THE SECRETARY TO GOVT.POWER(A)
DEPARTMENT.
EXT.P25 PHOTOCOPY OF THE NOTE FILE OF THE BOARD PERTAINING TO
THE NECESSITY OF RECTIFICATION OF THE NOTIFICATION
ISSUED BY THE PSC POINTED OUT IN THE NOTE FILE OF THE
KERALA STATE ELECTRICITY BOARD WITHOUT ANNEXURES.
EXT.P26 PHOTOCOPY OF THE NOTE OF THE CHIEF ENGINEER (HRM)
TO THE SECRETARY, KSEB.
EXT.P27 PHOTOCOPY OF PSC'S CALENDAR FOR THE SUB ENGINEERS
TEST UNDER 10% QUOTA PROPOSING TO SCHEDULED IN THE
MONTH OF JULY 2013.
EXT.P28 PHOTOCOPY OF B.O.(FM)No.1193/2013 (M/T7GO) TI/GI/
2013-2014 DTD.30.5.2013 ISSUED BY THE SECRETARY OF
THE KSE BOARD.
EXT.P29 TRUE COPY OF ORDER DATEAD 16.8.1973 ISSUED BY THE
KSEB ALONG WITH THE ANNEXURE.
EXT.P30 TRUE COPY OF THE BOARD ORDER DATED 10.1.2001
ISSUED BY THE KSEB.
EXT.P31 TRUE COPY OF THE NOTE SENT BY THE CHIEF ENGINEER
(HRM) TO THE SECRETARY, KSEB IN SEPTEMBER 2012.
EXT.P32 TRUE COPY OF THE COMMUNICATION DATED 29.1.2014
SENT BY THE CHIEF ENGINEER (HRM) TO THE SECERTARY,
PSC ALONG WITH THE PROFORMA FOR REPORTING THE VACANCIES.
RESPONDENTS' EXHIBITS NIL.
True copy
P.S.TO JUDGE
A.V.RAMAKRISHNA PILLAI, J
---------------------------------------------
W.P.(C) No.4564 of 2012
---------------------------------------------
Dated this the 20th day of October, 2014
JUDGMENT
This writ petition is filed for a direction to make necessary corrections in Ext.P18 notification inviting applications for the post of Sub Engineer (Electrical) under 10% quota reserved for in-service candidates set apart for diploma holders, excluding certificate holders from the category of eligible persons to apply for the post. It is prayed to quash clauses 7(2)(b) and
(c) of Ext.P18 notification allowing the certificate holders to partake in the selection process.
2. The petitioners are presently working as Overseers in electrical sections of various offices of the respondent Electricity Board. The petitioners are diploma holders and they allege that they are eligible and legally entitled to be appointed to the post of Sub WPC No.4564 of 2012 2 Engineers under 10% quota earmarked for the overseers of the Board who have Diploma in Engineering. The respondent Board as per Ext.P1 order dated 1.11.1971 amended the method of appointment to the post of Ist Grade Overseer prescribed in Ext.P4 in the year 1967. As per the amended order, the appointment to the post of Ist Grade Overseer (now re-designated as Sub Engineer) will be in the ratio of 1:1 between direct recruitment and promotions.
3. The petitioners allege that in the respondent Board, Sub Engineers are the persons entrusted with the supervision work and control over the high tension lines and this position has been affirmed as per Ext.P12 circular dated 18.9.2004. In Ext.P12, it is stated that the qualification of the persons who are eligible to supervise and to be engaged in high tension and extra high tension are diploma holders and B.Tech holders. It is further alleged that as per Ext.P13 WPC No.4564 of 2012 3 letter dated 26.5.2011, it was informed by the Central Electricity Authority that in the State of Kerala unqualified hands are dealing with high tension and extra high tension which is against the rules. It is further alleged that the PSC as per Ext.P17 informed that the documents which prescribes the qualification for appointment under 10% quota from among board employees are not available with the said office. According to the petitioner, it is the basic document which prescribes qualification to be relied on while issuing the notification under 10% quota.
4. The grievance of the petitioners is that the respondent Public Service Commission has now issued Ext.P18 notification inviting applications from the certificate holders too besides the diploma holders to the post of Sub Engineers under the 10% quota in total violation of Ext.P1 which was affirmed by two Division Benches of this Court as could be seen from Exts.P7 and P8. The petitioners allege WPC No.4564 of 2012 4 that the said action is illegal and the wilful silence and inaction on the part of the respondent Board in not pursuing the PSC to correct the mistake and effect selection process as per Ext.P1 would adversely affect the protection granted by the Board to the persons like the petitioners.
5.The third respondent PSC filed a counter affidavit contending that Ext.P18 notification was prepared as per Ext.P4 Board order dated 28.12.1967. Ext.P5 Board order dated 23.1.1981 deals with the recruitment method and qualification prescribed for recruitment by promotion in 60% vacancies by the Board. It is further stated that Ext.P4 Board order dated 28.12.1967 deals with the qualifications prescribed for direct recruitment and states that the qualifications prescribed for direct recruitment is also considered for 10% departmental quota recruitment. Therefore, it was contended that certificate holders also can apply for the post. The Public Service Commission maintained WPC No.4564 of 2012 5 the stand that the notification was issued by the Commission in accordance with the Board orders prescribed for the method of appointment and qualification.
6. I have heard the learned senior counsel appearing for the petitioners and the learned counsel for the respondent Board and the learned standing counsel for the PSC.
7. The grievance of the petitioners is that Ext.P18 notification allows certificate holders to partake in the selection process to the post of Sub Engineer, Electrical under 10% quota reserved for in service candidates set apart for diploma holders. Ext.P3 is the proforma for reporting 67 vacancies for appointment to the post of Sub Engineer (Electrical) as on 3.11.2009 by the Chief Engineer (HRM) of the Board.
8. It is crucial to note that in that proforma the most relevant board order i.e. Ext.P1, regarding the recruitment to the post was not noticed. Therefore, WPC No.4564 of 2012 6 the fact that the Diploma in Electrical Engineering or Diploma in Electronics and Communication Engineering or Diploma in Electronics Engineering alone are the qualification prescribed by the KSE Board for direct recruitment to both open vacancies and 10% in service vacancies was not brought to the notice of the PSC. According to the petitioners, a mistake occurred in Ext.P18 by giving a wrong interpretation to Ext.P5 board order dated 23.1.1981. It could be seen from Ext.P1 that 1:1 ratio for direct recruitment and promotion to the post of Sub Engineer (Electrical) was prescribed by the Board. Out of the 50% vacancies earmarked for direct recruitment, 10% is for direct recruitment from in service candidates possessing diploma qualification. Thereafter the Board issued Board order dated 16.8.1973 prescribing the revised qualifications shown in Annexure to that order to regulate promotions to the category of Ist Grade Overseer (Electrical) to those who have been WPC No.4564 of 2012 7 appointed to the Board service on or after 15.8.1971. It is relevant to note that it was after Ext.P29, Ext.P19 order dated 18.4.1975 was issued stating that for direct recruitment to the 10% quota to in-service candidates, 3 years service in the next lower category, viz. IInd Grade Overseer (Electrical) including Draftsman was prescribed. After that Ext.P5 Board order dated 23.1.1981 was issued amending the method of appointment to the post of Ist Grade Overseer (Electrical) and also making changes in Ext.P29. By the issuance of Ext.P5, the ratio for direct recruitment was reduced from 50% to 40% and it was specified that 40% is reserved for direct recruitment and 10% is reserved for in- service candidates. The qualification shown in the Annexure contained in Ext.P29 was also changed by Ext.P5. Ext.P5 qualification refers to promotion which is dealt within Ext.P29. Therefore, after the issuance of Ext.P5 also, the qualification for direct recruitment continued to be Diploma in Electrical WPC No.4564 of 2012 8 Engineering. However, those who have completed three years service either in the category of IInd Grade Draftsman or in the category of IInd grade draftsman alone were eligible. Thereafter Ext.P6 Board order was issued prescribing Diploma in Electronics and Communication also as a qualification for direct recruitment to the post of Sub Engineer (Electrical). Thereafter on 10.1.2001, Ext.P30 Board order was issued prescribing diploma in electrical engineering also as an alternate qualification for direct recruitment to the post of Sub Engineer (Electrical). In Ext.P31 Note given by the Chief Engineer of the respondent Board in September 2012, it is clarified that 10% quota for in service candidates are meant for diploma holders only. Further, the vacancies earmarked for direct recruitment of 10% was 305 and the number of persons working was only 90. That means 215 vacancies were available at that time in the quota reserved for direct recruitment or in-service WPC No.4564 of 2012 9 candidates. Thereafter the Chief Engineer (HRM), by Ext.P32 communication dated 29.1.2014 addressing the Secretary of the Kerala Public Service Commission, reported 180 vacancies in the 10% quota of in-service candidates. There, the qualification shown are SSLC and Diploma in Electrical Engineering or Diploma in Electronics and Communication and Diploma in Electronics. From the proforma for reporting the vacancies contained therein, it could be seen that Ext.P1 Board order which the board failed to bring to the notice of the PSC earlier was specifically mentioned. More over, Ext.P5 Board order which resulted in giving wrong interpretation regarding the qualifications for direct recruitment was excluded in that communication. Therefore, Ext.P32 clarifies the position that in the earlier communication reporting the vacancies of 10% quota of in-service candidates, there occurred a mistake in failing to mention Ext.P1 and by mentioning Ext.P5 and giving it a wrong WPC No.4564 of 2012 10 interpretation, Ext.P18 notification happened to be issued mistakenly. That mistake is now required to be corrected in Ext.P32. The aforesaid mistake was requested to be corrected by the Chief Engineer (HRM) as early as on 11.4.2012 through Ext.P26 Note which reads as follows:
"In the above circumstance, the matter may be examined and appropriate direction may be given to Kerala public Service Commission to get the notification rectified based on the Board order dated 1.11.1971. Please treat the matter as most urgent as the last date for accepting the application vide the above Kerala Public Service Commission Notification has already elapsed."
9. But the Secretary of the KSE Board has not given any necessary information to the PSC which lead to the present complications. Therefore, Ext.P18 notification requires a rectification and without rectification of Ext.P18, as requested by the Chief Engineer in Ext.26 in terms of Ext.P32, the PSC shall not be allowed to proceed with further selection to the post of Sub Engineer (Electrical) in 10% quota.
WPC No.4564 of 2012 11
Therefore, this writ petition is allowed. Ext.P18 is quashed to the extent of allowing the certificate holders to partake in the selection to the post of Sub Engineer(Electrical) under 10% quota set apart for diploma holders in terms of Ext.P1 board order.
The respondent PSC is directed to issue modified notification as requested in Ext.P26 and in terms of Ext.P32 and shall proceed with the further selection to the post of Sub Engineer (Electrical) in 10% quota in accordance with the corrected notification.
Sd/-A.V.RAMAKRISHNA PILLAI
JUDGE
css/ true copy
P.S.TO JUDGE