IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE S.SIRI JAGAN THURSDAY, THE9H DAY OF JANUARY201419TH POUSHA, 1935 WP(C).No. 28867 of 2005 (J) ---------------------------------------- PETITIONER(S): ---------------------- R. SHAJI, S/O. RAGHAVAN, LINEMAN GRADE - II, ELECTRICAL SECTION, ARANMULA, PATHANAMTHITTA DISTRICT. BY ADVS.SRI.M.V.THAMBAN SMT.THARA THAMBAN RESPONDENT(S): -------------------------- 1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM.
2. CHIEF ENGINEER (HRM), KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM. BY ADVS. SRI. ASOK M.CHERIYAN, SC, KSEB SRI.PULIKOOL ABUBACKER, SC, KSEB SRI.JOSE J.MATHEIKEL, SC, KSEB THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON0901-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PJ WP(C).No. 28867 of 2005 (J) ---------------------------------------- APPENDIX PETITIONERS' EXHIBITS ----------------------------------- P1: COPY OF GOVT.ORDER
GO(P)NO.616/2003/FINANCE DATED1911/2003 P2: COPY OF B.O.(FB)NO.1133/2004(ESTT.V-1554/2004) DATED55/2004 BY THE1T RESPONDENT. P3: COPY OF REPRESENTATION DATED18/2000 SUBMITTD BY THE PETITIONER TO THE2D RESPONDENT. P4: COPY OF REPRESENTATION DATED136/2003 SUBMITTED BY THE PETITIONER TO THE2D RESPONDENT P5: COPY OF RELEVANT PORTION OF THE GRADATION LIST OF ELECTRICITY WORKERS ISSUED BY THE1T RESPONDENT. P6: COPY OF REPRESENTATION ATED810/2004 SUBMITTED BY THE PETITIONER BEFORE THE2D RESPONDENT P7: COPY OF THE JUDGMENT
DT.7/12/2004 P8: COPY OF THE ORDER
NO.EBEW/B1/WP(C)NO.339967/2004(R)DT.29/1/2005 RESPONDENTS' EXHIBITS ------------------------------------- NIL. / TRUE COPY / P.S. TO JUDGE PJ S.SIRI JAGAN, J.
================== W.P.(C).No. 28867 of 2005 ================== Dated this the 9th day of January, 2014
JUDGMENT
The petitioner was appointed as an electrical worker in the Kerala State Electricity Board on 12.11.1996. Before completing probation, he availed of leave without allowances for taking up private employment, under Appendix XIIA of the Kerala Service Rules, for the period from 1.12.1996 to 20.12.1999. He rejoined duty after the leave on 30.11.1999. His probation was declared with effect from 30.5.2000. Subsequently, he was promoted as Lineman Grade II, with effect from 11.4.2003. Thereafter, on 19.11.2003, the Government issued Ext.P1 Government order directing that seniority of those who availed of leave without allowances under Appendix XIIA, before completion of probation in a grade, will be protected even though the benefits accrued prior to their proceeding on leave are forfeited and are treated as new entrants in the grade. That was with a condition that they w.p.c.28867/05 - :
2. :- will lose promotion chances that may arise during the currency of leave and until the date of completion of successful probation after rejoining duty. Thereafter, they will occupy the position above those recruited after him and remaining in last grade was the condition imposed. The Board adopted Ext.P1 Government Order by Ext.P2 Board order dated 5.5.2004. By Ext.P4 representation dated 13.6.2003, the petitioner requested for benefits of seniority in accordance with Ext.P1 read with Ext.P2. He filed a further representation on 8.10.2004. However, by Ext.P8 order, the Board rejected his claim on the ground that Ext.P1 came into force only on 19.11.2003, in which, it was specifically stated that the order has no retrospective effect. That being so, he is bound by the conditions in Appendix XIIA, which specifically stated that the officers will forfeit the service benefits that had accrued to them prior to their proceeding on leave and they will be deemed as new entrants to service on return to the service after leave was the reasoning given. Therefore, it was held that the petitioner only had a right to rejoin service in the same entry grade as if he was new a entrant. The petitioner challenges Ext.P8 order on the ground that Ext.P1 order is contrary to Rule 27(c) of the Part II of Kerala State and w.p.c.28867/05 - :
3. :- Subordinate Service Rules. The petitioner seeks the following reliefs: "i. to issue a writ of certiorary or other writ or order or direction calling for the records leading upto Ext.P8 and quash Ext.P8. ii. to issue a writ of mandamus or any other writ, or order or direction directing the 2nd respondent to assign the seniority of the petitioner in the grade of Electricity Worker taking into account the date of original advice by the P.S.C. and assign revised rank in the gradation list Ext.P5 in respect of electricity workers and also promote him to the higher grades taking into account such seniority and w.e.f. the date assigned to his immediate junior. iii. to declare that the petitioner is entitled to the benefit of Rule 27(c) of the KS&SSR and protection of seniority and also the benefit of Ext.P1 G.O. and Ext.P2 BO as petitioner's case was remaining unsettled in view of Ext.P3, and P4 representations were pending before the respondents." 2. A counter affidavit has been filed by the 2nd respondent supporting Ext.P8.
3. I have considered the rival contentions in detail.
4. First of all, Rule 27 (c) cannot be pressed into service for determining seniority of a person who was on probation at the time of obtaining leave under Appendix XIIA. The petitioner availed of leave under Appendix XIIA fully knowing about the consequences. Appendix XIIA specifically stated that the only right conferred upon the petitioner is to rejoin service in the same entry grade as if he is a new entrant and he will forfeit his service benefits that had accrued to him prior to his proceeding w.p.c.28867/05 - :
4. :- on leave before completion of probation. The petitioner has not chosen to challenge Appendix XIIA also. Ext.P1 order specifically states that it has no retrospective effect. But cases remaining open will be disposed of on the above basis. Although the petitioner would claim that the petitioner's case was remaining open, I am unable to accept the same, since the petitioner filed Ext.P4 representation only on 13.6.2003. In the meanwhile, he had already been promoted as Lineman Grade II on 11.4.2003. In the above circumstances, the petitioner's case cannot be considered as one remaining open, which must have been on the basis of the seniority assigned to him after he rejoined service after leave. Further, none of the persons, over whom the petitioner seeks seniority, has been impleaded as a respondent in this writ petition, without hearing whom, the settled seniority cannot be changed. Therefore, I do not find any merit in the writ petition and accordingly, the same is dismissed. Sd/- sdk+ K.RAMAKRISHNAN, JUDGE ///True copy/// P.A. to Judge