Kerala High Court
Thomas Paul vs The Kerala State Electricity Board on 26 December, 1988
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
MONDAY, THE 30TH DAY OF JULY 2012/8TH SRAVANA 1934
WP(C).No. 17198 of 2011 (Y)
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PETITIONER(S):
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THOMAS PAUL, AGED 54 YEARS,
S/O.PAILY, ASSISTANT EXECUTIVE ENGINEER,
K.S.E.B GENERATION SUB DIVISION, IDAMALAYAR,
RESIDING AT NEDUMTHADATHIL, KADAVOOR P.O.,
POTHANICAD -686 671,ERNAKULAM.
BY ADVS.SRI.P.P.JNANASEKHARAN
SRI.S.DILEEP
RESPONDENT(S):
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1. THE KERALA STATE ELECTRICITY BOARD,
REPRESENETD BY ITS SECRETARY, VYDUTHI BHAVAN, PATTOM,
THIRUVANANTHAPURAM-PIN- 695 004.
2. THE CHIEF ENGINEER (HRM),
K.S.E.B, VYDUTHI BHAVAN,PATTOM,
THIRUVANANTHAPURAM-PIN- 695 004
3. SMT. SUJATHA GOPALAN,
DEPUTY CHIEF ENGINEER, ELECTRICAL CIRCLE, K.S.E.B,
PALAI, KOTTAYAM DISTRICT, PIN- 686 575.
4. THE DIRECTOR OF VIGILANCE,
STATE OF KERALA,THIRUVANATHAPURAM -PIN-695 001.
R1 & R2 BY ADV. SRI.K.S.ANIL, SC, KSEB
R4 BY GOVERNMENT PLEADER SMT.SEENA RAMAKRISHNAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 30-07-2012, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
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WP(C)NO.17198/2011
APPENDIX
PETITIONER'S EXHIBITS:
P1 COPY OF THE ORDER DATED 26/12/1988 APPOINTING THE PETITIONER AS ASS
ENGINEER(ELECTRICAL)
P2 COPY OF THE RELEVANT PAGE OF THE SERVICE BOOK OF THE PETITIONER
DECLARING PROBATION IN THE ASSISTANT ENGINEER CADRE
P3 COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT PUBLISHING FINAL
SENIORITY LISTS OF ASST.EXE.ENGINEER(ELECTRICAL)DATED 27/11/2004
P3(A) COPY OF THE RELEVANT PAGE OF THE SENIORITY LIST OF 10% DEGREE
HOLDERS ASST.ENGINEERS(ELECTRICAL)
P3(B) COPY OF THE FRONT PAGE OF THE FINAL SENIORITY LIST OF ASSISTANT
ENGINEER (ELECTRICAL) IN THE 40% DEGREE QUOTA
P3(C) COPY OF THE RELEVANT PAGE OF THE SENIORITY LIST OF THE 40% DEGREE
HOLDERS ASSISTANT ENGINEER( ELECTRICAL)
P3(D) COPY OF THE FRONT PAGE OF THE SENIORITY LIST OF THE ASSISTANT
ENGINEER (ELECTRICAL) IN THE DEGREE QUOTA
P3(E) COPY OF THE RELEVANT PAGE OF THE SENIORITY LIST OF ASSISTANT
EXECUTIVE ENGINEER (ELECTRICAL)DEGREE QUOTA
P4 COPY OF THE REPRESENTATION DATED 29/05/2008 OF THE PETITIONER
ADDRESSING TO 1ST RESPONDENT.
P5 COPY OF THE REPRESENTATION DATED 12/03/2010 OF THE PETITIONER TO THE
2ND RESPONDENT.
P6 COPY OF THE PROCEEDINGS DATED 6/12/2008 OF THE 2ND RESPONDENT.
P7 COPY OF THE JUDGMENT DATED 16/08/2010 THIS HON'BLE COURT IN WP(C)
NO.25649/2010(E)
P8 COPY OF THE PROCEEDINGS OF 2ND RESPONDENT DATED 06/10/2010
P9 COPY OF THE REPLY DATED 03/02/2011 OF THE PUBLIC INFORMATION OFFICER
O/O THE CE (CD), ERNAKULAM
P10 COPY OF THE MEMO DATED 26/02/2005 OF THE 2ND RESPONDENT
P11 COPY OF THE ORDER DATED 05/01/2010 OF THE 1ST RESPONDENT.
P12 COPY OF THE ORDER DATED 04/05/2004 OF THE 2ND RESPONDENT.
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WP(C)NO.17198/2011
P12(A) COPY OF THE RELEVANT PAGE OF THE PROVISIONAL SENIORITY LIST OF
ASST.EXE.ENGINEERS(ELE) 75% QUOTA
P13 COPY OF THE B.O.NO.PSI/84/88(18) DATED 10/04/1990 OF THE 1ST RESPONDENT.
P14 COPY OF THE FRONT PAGE REVISED PROVISIONAL GRADATION LIST OF
ASST.ENGINEERS(ELE) AS ON 01/01/1988
P14(A) COPY OF THE RELEVANT PAGE OF EXHIBIT P14.
P14(B) COPY OF THE LAST PAGE OF P14.
RESPONDENT'S EXHIBITS: NIL
/TRUE COPY/
P.S.TO.JUDGE
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C.T.RAVIKUMAR, J.
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W.P.(C)No.17198 of 2011
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Dated 30th July, 2012
JUDGMENT
The petitioner is working as an Assistant Executive Engineer under the Kerala State Electricity Board (for short 'the Board). This writ petition has been filed mainly with the prayer to quash Exts.P3 (d) & P8 and to declare that the petitioner is entitled to be promoted as Assistant Executive Engineer with effect from 20.7.1996. The further prayers are as follows:-
"IV. to issue a writ of mandamus directing respondents 1 and 2 to place the petitioner above the 3rd respondent in Ext.P3(d) seniority list.
V. to direct the official respondents to assign seniority to the petitioner with effect from 20.7.1996 in the cadre of Asst. Exe. Engineer (Ele.) VI. to declare that the petitioner is entitled to get his seniority reckoned as per Ext.P12(a).
VII. to direct the respondents to grant consequential benefits of the notional promotion to the petitioner.
VIII. to direct the 4th respondent to inquire into the affairs of the Establishment section in the office of the 2nd respondent.
2. The facts, in succinct, of the case are as follows:WP(C).No.17198/2011 2
The petitioner commenced his service under the Board as a First Grade Overseer on 11.8.1980. Under the 10% Graduate Department Quota, he got appointment by selection as Assistant Engineer (Electrical) on 26.12.1988 as per Ext.P1. His probation in the cadre of Assistant Engineer (Electrical) was declared with effect from 11.1.1991. He availed Leave Without Allowances (for short 'LWA') for taking up employment abroad from 14.12.1996 and, in fact, continued on LWA till 12.12.2007. He rejoined duty on 13.12.2007. While the petitioner was on LWA, a provisional seniority list of Assistant Executive Engineer (Electrical) was published on 4.5.2004. He was assigned rank No.896 therein. On 27.11.2004, Ext.P3 final seniority list of Assistant Executive Engineer (Electrical) in the 10% degree department quota was published. In the 10% degree department quota, the petitioner was assigned rank No.136 and the third respondent was assigned rank No.522 in the 40% direct recruitment quota. The contention of the petitioner is that going by the service reports, the third respondent was junior to him as she was appointed by the Kerala Public Service commission as Assistant Engineer (Electrical) on 26.12.1989. However, the third respondent was promoted as Assistant Executive Engineer (Electrical) with effect from 20.7.1996. On his rejoining duty on 13.12.2007, the petitioner submitted representations on 17.12.2007, WP(C).No.17198/2011 3 20.5.2008 and 29.5.2008 to the respondent authorities requesting to grant him promotions with retrospective effect. Subsequently, after obtaining the details of promotion granted to the third respondent as Assistant Executive Engineer (Electrical), under the Right to Information Act, the petitioner submitted Ext.P5 representation. The contention of the petitioner is that the third respondent was given promotion as Assistant Executive Engineer on 20.7.1996 ie., against the vacancy that had arisen prior to the entry of the petitioner on LWA on 14.12.1996. It is contended that in the light of Clause IV to Appendix XVII A of Part I of the Kerala Service Rules, the petitioner could not stake claims for promotion against any vacancy in the cadre of Executive Engineer that might have arisen during the period of his LWA from 14.12.1996 to 12.12.2007. However, that cannot stand in the way of his claim for seniority over the third respondent considering the fact that he was granted promotion as Assistant Executive Engineer with effect from 20.7.1996 against a vacancy that was in existence prior to the petitioner's entry on LWA and also for such other consequential benefits.
3. Earlier, the petitioner had approached this court by filing W.P.(C).No.25649 of 2010 with the prayer for a declaration that he was entitled to be assigned notional promotion as Assistant Executive WP(C).No.17198/2011 4 Engineer (Electrical) with effect from 20.7.1996 and for issuance of a writ of mandamus commanding the respondents to grant him notional promotion with effect from 20.7.1996 as Assistant Executive Engineer.
The said writ petition was disposed of as per Ext.P7 judgment. Considering the pendency of Ext.P5 representation referred as such therein, the said writ petition was disposed of directing the second respondent therein viz., the Chief Engineer (HRM) to consider and pass orders on the said representation. The said representation was thereupon, considered and it was rejected as per Ext.P8 by the second respondent. It is in the said circumstances that the petitioner filed this writ petition with the aforesaid prayers.
4. The facts narrated as above would reveal that the petitioner who got appointment as Assistant Engineer (Electrical) under 10% Graduate Department quota on 26.12.1988 stated on LWA for 11 years with effect from 14.12.1996. Though the petitioner assails Ext.P8 order dated 6.10.2010 the statements therein to the effect that the petitioner was granted LWA subject to certain conditions are not disputed. One of the conditions was that during the currency of the leave period he would lose all his service benefits including commutation leave benefits, half pay leave benefits etc. and also promotion chances WP(C).No.17198/2011 5 as may arise with reference to his seniority on the post from which he left on foreign employment. Yet another condition was that he would lose seniority also in the grade with reference to those who might get promoted before he rejoins duty. Virtually, the petitioner would admit that he was granted LWA subject to such conditions. After availing LWA with effect from 14.12.1996 he rejoined duty only on 13.12.2007 and was subsequently promoted as Assistant Executive Engineer on 15.12.2008. The petitioner filed this writ petition with the aforementioned prayers mainly contending that the third respondent who was his junior in the cadre of Assistant Engineer (Electrical) got promoted as Assistant Executive Engineer (Electrical) with effect from 20.7.1996. In Ext.P8 it is specifically stated that the third respondent was promoted as Assistant Executive Engineer (Electrical) on 1.11.1997, that is, during the currency of LWA availed by the petitioner. The contention of the petitioner is that, in fact, the third respondent was promoted as Assistant Executive Engineer (Electrical) on 20.7.1996. As already noticed, the specific contention of the respondents is that consequent to the re-assignment of promotions in the cadre of Assistant Executive Engineer the third respondent's promotion was reassigned with effect from 1.11.1997 instead of 20.7.1996. Thus, consequent to the reassignment of promotions the date of promotion of the third WP(C).No.17198/2011 6 respondent falls within the leave period of the petitioner. Going by the conditions of grant of LWA the petitioner cannot raise any grievance with respect to the promotion of the third respondent. That apart, the claim and contentions of the petitioner cannot be upheld on other reasons as well. Even if it is taken that the promotion of the third respondent was effected on 20.7.1996 that is, prior to his availing of LWA the said promotion of the third respondent was never challenged by the petitioner. It is to be noted that even in this writ petition the petitioner did not choose to challenge the promotion granted to the third respondent. The attempt of the petitioner is to indirectly challenge the promotion granted to the third respondent by throwing a challenge against the seniority assigned to the third respondent in the cadre of Assistant Executive Engineer (Electrical). Admittedly, the third respondent was granted promotion to the post of Assistant Executive Engineer (Electrical) about a decade prior to the promotion of the petitioner to the said post. As already noticed hereinbefore, the petitioner was granted promotion as Assistant Executive Engineer (Electrical) only on 15.12.2008. There cannot be any doubt with respect to the fact several of his juniors in the cadre of Assistant Engineer (Electrical) might have obtained promotion to the post of Assistant Executive Engineer (Electrical) during the currency of the LWA availed by WP(C).No.17198/2011 7 the petitioner, that is, during the pretty long period of 11 years during which he stayed on LWA. Except the third respondent none of such promotees have been made parties to this writ petition. As already noticed hereinbefore, the promotion granted to the third respondent to the post of Assistant Executive Engineer (Electrical) is also not under challenge in this writ petition. The attempt of the petitioner is to achieve the purpose viz., getting promotion with retrospective effect by challenging the seniority assigned to the third respondent without directly challenging the promotions granted to the third respondent and also to other juniors to the post of Assistant Executive Engineer (Electrical) while he was on LWA. Such an indirect challenge made by the petitioner without challenging the basic orders viz., orders of promotions granted to the third respondent and also such other juniors to the post of Assistant Executive Engineer (Electrical) cannot be entertained at all, based on the settled position of law that what cannot be done directly shall not be permitted to be done indirectly. The petitioner who is fully aware of the fact that in view of the conditions enjoined while granting LWA he cannot successfully challenge the promotions granted to the third respondent and such other juniors in the cadre of Assistant Engineer (Electrical) to the post of Assistant Executive Engineer (Electrical) is actually adopting a clandestine method to WP(C).No.17198/2011 8 achieve his goal. This is evident from prayer Nos. III, IV and V in this writ petition. The petitioner seeks a declaration that he is entitled to be promoted as Assistant Executive Engineer (Electrical) with effect from 20.7.1996 and also seeks issuance of a writ of mandamus commanding respondents 1 and 2 to place him above the third respondent in Ext.P3(d) (the seniority list). Without successful challenge against the promotions granted to the third respondent and also to many of his juniors in the cadre of Assistant Engineer (Electrical) who got promotion to the post of Assistant Executive Engineer (Electrical) during the currency of LWA availed by the petitioner the challenge in this writ petition would not only go against the conditions of the LWA granted to the petitioner in tune with the specific provisions under Appendix 12A of Part I of the Kerala Service Rules but also against the settled position of law that such highly belated claim for promotions cannot be entertained when any such consideration would adversely affect others. I am fortified in my view by a judgment of the Hon'ble Apex Court in S.Sumnyan & Others v. Limi Nini & Others (AIR 2010 SC 2159). Granting the prayers sought for by the petitioner in this writ petition would certainly amount to promoting the petitioner and granting him the relief of challenging the promotions granted to the third respondent as also others similarly situated without a direct challenge against their WP(C).No.17198/2011 9 promotions. Evidently, the petitioner cannot challenge the promotions granted to such persons including the third respondent and admittedly, the petitioner has not raised any challenge against their promotions. Therefore, the attempt on the part of the petitioner to get the benefit of promotion, though notionally, and seniority would amount to reckoning of the entire period spent by the petitioner on LWA for the purpose of seniority and promotion which is impermissible in law and in view of the conditions of grant of LWA to him. Persons who availed LWA for taking up employment abroad cannot be permitted to create unrest and dejection among those employees who served the department sincerely all along.
For all the above reasons, I am of the view that this writ petition lacks any merit and accordingly, it is dismissed.
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C.T.RAVIKUMAR Judge spc/TKS