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The Board was established under Section 5 of the Electricity' (Supply) Act, 1949 on 7th March, 1957. Prior to 1.10.1966, 7 employees were appointed by the Board on various categories of posts like Oyersecr, Tracer etc. The Kerala Public Service Commission (Additional Functions) Act, 1963 (hereinafter referred to as the "Act") came into force with effect from 1.10.1966. The Act provided for exercise of certain additional functions by the Kerala Public Service Commission in respect of appointments of officers and servants of the Board and their conditions of service. During the period 1972 to 1974 the appellants - four in number, were recruited through the Public Service Commission on different dates to different categories of posts like Overseer, Tracer etc. On 18.4.1975, the Board issued an Order that out of 50 per cent quota of direct recruits in the cadre of Asstt, Engineer 40 pel- cent were to be appointed from open market and remaining 10 per cent were to be recruited from qualified Engineering Graduates in the employment of the Board. The case of the respondents is that the recruitment of these two categories of direct recruits were to be made with the consultation of the Public Service Commission. During, the period 1976 to 1980, the Public Service Commission did not take any step tor recruitment to fill up the 10 per cent quota set apart for the in-service Engineering graduates who were in employment with the Board. Since the appellants and others - totaiing, eleven in numbers, were Engineering Graduates in the service of tile Board.. the Board on different dates beginning from 26.12.1976 to 1.8.1979 appointed them to the posts of Assistant Engineer (Civil) against 10 per cent quota reserved for the in-service Engineering Graduates in the Board. The letter of appointment indicated that appointments of the appellants were provisional during the period of probation and in case they pass two Departmental tests viz., 'Departmental test tor Executive Staff" and "Account Test Lower" and further on satisfactory completion of the probationary' period, their .services would be regularised.

On successful completion of the probationary' period, the Board by separate orders regularised the appointments of all the II Assistant Engineers including the appellants from the date of their joining duties as Assistant Engineers. The writ petitioners who are the respondents lierein were recruited in the cadre of Assistant Engineers (Civil) through the Public Service Commission and had joined their duties on 2 i. 10.1981. Although the services of 11 employees including the appellants were regularised by the Board, yet the Public Service Commission declined to give its concurrence to the regularisation of the services with effect from the date of their joining duties. There being difference of opinion between the Board and the Public Service Commission on the question of date of regularisation of services of the appellants, the Board referred the matter to die State Government under sub-section (2) of Section 3 of the Act. The State Government on receipt of the reference from the Board again referred the matter to the Public Service Commission. Thereafter, the State Government after considering the matter, by an order dated 12.5.82 overruled the advice of the Public Service Commission and approved the regularisation of the services of the appellants with direction that inter-sc seniority of the Assistant Engineers whose services have been regularised shall be determined from the date on which each Assistant Engineer acquired the necessary qualification. Consequent upon the order of the State Govt. dated 12.5.19S2 a gradation list of Assistant Engineers was prepared wherein the appellants were shown above to the respondents herein. After a lapse of 5 years the respondents herein who are direct recruits and joined duties on 21.10.1981, filed a writ petition O.P. No.7730 of 1987 for quashing the Govt. Order dated 12.5.1982 and the consequent gradation list Ext.l2 to the writ petition. In the said writ petition 10 Assistant Engineers including the 4 appellants were arrayed as respondents 15 to 24. A learned Single Judge of the Kerala High Court dismissed the writ petition on the ground that the challenge to the seinority list was highly belated and further there was no violation of quota of 10 per cent earmarked for in-service Engineering Graduates. Against the said judgment the respondents herein filed a Writ Appeal before a Division Bench of the High Court. During the pendency of the Writ Appeal two other Assistant Engineers (Civil) who were also directly recruited and had joined their duties on 21.10.1981 filed another Writ Petition No. 12363/93 seeking quasiling of the Govt. Order dated 12.5.1982 and the gradation list Ext.P.12. The writ appeal and the writ petition filed by the writ petitioners were consolidated and heard together. During the pendency of the writ appeal and the writ petition the appellants were promoted to the posts of Executive Engineers. The Division Bench after hearing the matter was of the view that tile date of the order of the first appointment of the appellants would be the date when their services were regularised i.e. 12.5.1982 and. therefore, the respondents who joined their duty on 21.210.1981 have to be treated senior to the appellants. The High Court allowed the writ appeal and the writ petition and directed the Board to re-fix the seniority in the light of what was stated in the judgment, Shri P.P.Rao, learned senior counsel, appearing for the appellants advanced.three submissions. The first submission is that under the Act there is no requirement of consultation with the Public Service Commission in regard to suitability of the candidate to be a.ppomted to the post of Assistant Engineers in the Board and, therefore, the seniority of the appellants has to be determined with effect from the date of their first ad-hoc appointments. The second submission is that if it is held that consultation with the Public Service Commission was necessary with respect to the appointment of the appellants in the Board, the State Government in exercise of its over-ridding power conferred by sub-section (2) of Section 3 of the Act cured the defect ofnon consultation with the Public Service Commission by over-ruling the advice of the Public Service Commission and ordering for regularisation of the services of the appellants with effect from the dates the appellants acquired qualification. The third submission is that in any event if it is held that the Kerala State and Subordinate Rules 1958 are applicable to the appointment of Assistant Engineers in the Board, the Government has power under rule 39 of the said Rules to retrospectively remove the hardship by regularising the services of the appellants.

"Kerala State Electricity Board Proceedings of the Chief Engineer (Civil) K S E Board, Trivandurm.
Sub : Estt - Sri. V. Venkiteswara lyer, Asst. Engmeer © Declaration of probation - Orders issued -
Older No. EBC4/807/77 Dated : 14-11-1979 Read : This office Memo No. EBC4/807/77/5-5-79 to Sri V.Venkiteswra lyer.
ORDER Sri V.Venkiteswara lyer, first Gr, Overseer (Ele) Office of the Chief Engineer (Ele) KSE Board, Trivandrum was provisionally appointed as Assistant Engineer (Civil) and posted in this office vide this office memo read above and he had reported for duty on the A.N. of 5-5.79. As per the condition of appointment he will be a probationer in the post of Assistant Engineer (Civil) from the date of his joining duty in that post and the period of probation was then fixed as 6 months within a continuous period of one year.
The Executive Engineer, T.P.H. Office - has reported in Office note (i) dated 6-11-79 that the period of probation has been completed by Sri V. Venkiteswara lyer. Assistant Engineer (Civil) satisfactorily.
Hence, it is hereby declared that Sri V.Venkiteswara lyer liaa completed the probation eatiefaotorily and that his provisional appointment as Assistant Engineer (Civil) is regulatriced from. the date of the joining duty-.
.Sd/ CHIEF ENGINEER (CIVIL) However, the Public Service Commission did not agree for regularisation of services of the appellants with effect from the date of joining their duties and as such the matter was referred to the State Government. The State Government after consultation with the Public Service Commission found that the appellants had possessed the prescribed qualifications and were suitable to be appointed as Assistant Engineers and further they gained considerable experience and competence, and as such over-ruled the advice of the Public Service Commission and approved the regularisation of services of the appellants with effect from the date they acquired the requisite qualifications. Admittedly, the appellants had acquired the qualifications prior to 21.10.81, which is the date of joining duty by the respondents herein. In this background the question that arises is whether the Government could grant regularisation of services of the appellants as Assistant Engineers with effect from the date of acquisition of their qualifications. Sub-section (2) of Section 3 of the Act provides that in case of any difference of opinion between the Public Service Commission and the Electricity Board on any matter, the Electricity Board is required to refer the matter to the Government and the decision of the Government thereon is to be treated as final. The said power of the State Government has not been questioned. Further, under Section 4 of the Act, the State Government is empowered to lay down the matters where consultation with the Public Service Commission is not necessary. The State Government in exercise of its power has already provided that in certain classes of appointments it is not necessa