Judgment:
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS TUESDAY, THE11H DAY OF FEBRUARY201422ND MAGHA, 1935 WP(C).No. 33671 of 2006 (H) ---------------------------- PETITIONER(S): ------------- V.A.ABDUL RAHIMAN, AGED60YEARS, S/O. LATE MR. ALIPPILLAI, MECHANIC-I (RETD.) P.C.STORES, ANGAMALI, KSEB VAYALIPARAMBIL HOUSE, PVIP CANAL ROAD, OKKAL P.O. PERUMBAVOOR. BY ADV. SRI.P.M.MOHAMMED SHIRAZ RESPONDENTS: ------------- 1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVAN TRIVANDRUM.
2. THE CHIEF ENGINEER (HRM), KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVAN PATTOM PALACE P.O., TRIVANDRUM.
3. THE CHIEF INTERNAL AUDITOR, KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVAN PATTOM PALACE P.O., TRIVANDRUM. R,R1 TO R3 BY ADV. SRI.K.S.ANIL, SC, KSEB R,R1 TO3BY ADV. SRI. ASOK M.CHERIYAN, SC, KSEB R BY ADV. SRI.PULIKOOL ABUBACKER, SC, KSEB THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON1102-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -2- APPENDIX PETITIONER'S EXHIBITS: EXT.P1- TRUE PHOTOCOPY OF ARTICLE-VIII OF L.T.S1990. EXT.P2-TRUE PHOTOCOPY OF B.O.NO.389/96 DATED162.1996. EXT.P3- TRUE PHOTOCOPY OF LETTER NO. LA(S) III/1208/2000 DATED265.2000 OF SECRETARY, KSEB. EXT.P4- TRUE PHOTOCOPY OF ORDER
NO. EB1/28/2002-2003 DATED171.2003 OF ASSISTANT EXECUTIVE ENGINEER. EXT.P5- TRUE PHOTOCOPY OF LETTER NO. PAY.FIXN.I-7/2005 DATED18/2005 OF2D RESPONDENT. EXT.P6-TRUE PHOTOCOPY OF REPRESENTATION DAED217.2006 OF PETITIONER. EXT.P7- TRUE PHOTOCOPY OF ORDER
NO. PAY.FIXN.1/73/2006/48/17.10.2006 DATED1610.2006. EXT.P8-TRUE PHOTOCOPY OF B.O. NO. XB.III.2880/78 DATED264.1979. EXT.P9- TRUE PHOTOCOPY OF ARTICLE-VI OF L.T.S.1978. EXT.P10-TRUE PHOTOCOPY OF JUDGMENT
DATED712.2006 IN O.P.NO.28388 OF1999 EXT.P11- TRUE PHOTOCOPY OF B.O. NO. PSI.1533/89 [12] DATED132.1991. EXT.P12- TRUE PHOTOCOPY OF B.O. NO.648/SC/LTS/OPR/95 DATED153.1996. EXT.P13- TRUE PHOTOCOPY OF APPLICATION DATED1710.2011 SUBMITTED UNDER RIGHT TO INFORMATION ACT. EXT.P14- TRUE PHOTOCOPY OF REPLY DATED1511.2011 FROM PUBLIC INFORMATION OFFICER. EXT.P15- TRUE PHOTOCOPY OF APPLICATION DATED2511.2010 SUBMITTED UNDER RIGHT TO INFORMATION ACT. EXT.P16- TRUE PHOTOCOPY OF REPLY DATED2312.2010 FROM PUBLIC INFORMATION OFFICER. TRUE COPY P.A. TO JUDGE AL/- ALEXANDER THOMAS, J.
--------------------------- W.P.(C) No. 33671 of 2006 -------------------------- Dated this the 11th day of February 2014. JUDGMENT
The petitioner joined the services of the respondent-Kerala State Electricity Board, on 1.7.1968 and was duly promoted as Mechanic Grade I on 1.2.1972. It is the case of the petitioner that two grade promotions were granted to him in the above post of Mechanic Grade I. On completion of the 25 years of service in the post of Mechanic Grade I, the competent authority of the respondent-Board duly issued Ext.P4 proceedings dated 17.1.2003 ordering that the petitioner is to be granted the third grade promotion in the post of Mechanic in the applicable scale of pay of Rs.3225-150-3675-180-4575-230-4805 with effect from 1.2.1997, without the change of duties and responsibilities. Due to inordinate delay in the actual disbursal of the said benefits ordered in Ext.P4, the petitioner had submitted representation dated 19.5.2005 to the 2nd respondent-Chief Engineer of the Board, who, by Ext.P5 dated 7.8.2005, informed the petitioner that the question regarding the sanction of the higher grade promotion in the above said scale of pay of Rs.3225-4805/- to those employees coming under the W.P.(C) No. 33671/2006 :
2. : integrated gradation list of mechanical categories has been presented before the Board in a similar case and that, on receipt of favourable orders from the Board, the petitioner's request would be taken up for consideration. The petitioner was again constrained to submit Ext.P6 representation dated 21.7.2006 to the Secretary of the respondent-Board. This was responded to not by the competent authority of the Board, who granted the benefits as per Ext.P4, but by the Chief Internal Auditor of the respondent-Board, who informed the petitioner that the petitioner cannot be granted third higher grade promotion in the scale of pay of Rs.3225-4805. Aggrieved by Ext.P7, the petitioner has approached this Court by filing this writ petition with the prayers for certiorari to quash the above said Ext.P7 proceedings dated 16.10.2006 and for declaration that the petitioner is entitled to get third higher grade promotion from 1.2.1997 in the scale of pay of Rs.3225-4805 and for direction to the respondents to sanction and disburse to the petitioner all consequential benefits of third higher grade promotion from 1.2.1997 in the scale of pay of Rs. 3225-4805 forthwith. W.P.(C) No. 33671/2006 :
3. :
2. Heard the learned counsel for the petitioner, Sri.P.M.Mohammad Shiraz and the learned standing counsel for the Kerala State Electricity Board, Sri.Pulikool Aboobacker. Both of them have elaborately taken me to the pleadings in the writ petition, the counter affidavit of the Board and the reply affidavit of the petitioner.
3. The short question that arises for consideration in this matter is as to whether the competent authority of the Board was right in ordering to sanction the benefits of third higher grade promotion to the petitioner in the scale of pay of Rs.3225-4805. It is not in dispute that the Kerala State Electricity Board as per BO No.PS1/1533/89(22) dated 24.4.1990 that the employees of the Board are to be sanctioned grade promotions on completion of 10, 18 and 25 years respectively, as can be seen from the recitals in Ext.P4. The said benefit of grade promotion is regulated on the basis of the long term settlement, 1990 entered between the Board and the unions of the Board employees. Clauses 1 to 3 of Ext.P1 read as follows: "i. If a workman holding a post does not get a promotion/grade promotion within 10 years of joining that post, then he will be granted a grade promotion in the normal promotion channel as per practice existing now. W.P.(C) No. 33671/2006 :
4. : ii. If a workman holding a post does not get two promotions/grade promotions within a period of 18 years of joining that post, then he will be granted appropriate number of Grade Promotions so that he gets at least two promotions/Grade promotions on completion of 18 years of service in that post. ii. Similarly, if a workman holding a post does not get atleast three Promotions/Grade Promotions within a period of 25 years of joining that post, then he will be granted appropriate number of grade promotions so that he gets atleast three promotions/grade promotions on completion of 25 years service in that post." It is not in dispute that the petitioner was duly promoted to the post of Mechanic Grade I on 1.2.1972. It is also indisputable, as can be seen from Exts.P8 and P9, that the regular hierarchy of promotions for the post of Mechanic Grade I is Mechanic Grade I - Mech. Foreman - Senior Foreman-General Foreman. The specific averments and contentions of the petitioner in this regard as pleaded in para 6 and Ground B of the W.P.(C) has not been in any way effectively rebutted by the respondents, except a bald denial in Ext.P-7 and in paras 9 & 10 of the counter affidavit. The averments of the petitioner in para 6 and Ground B of the W.P.(C) has been fully established from Ext.P8 Board Order and clauses (64) & (72) of Article 6 of the Long Term Settlement (LTS) produced as Ext.P-9. These aspects also stand estalished from Ext.P-10. It is also an undisputed fact that the petitioner after getting promotion as Mechanic Grade I has never secured any regular promotion to the W.P.(C) No. 33671/2006 :
5. : next higher promotion post, till his voluntary retirement from the service of the Board on 5.4.1999. It is also not in dispute that the petitioner is fully eligible to be regularly promoted to the above said higher posts. Though there is an averment in the counter affidavit of the respondent-Board that the petitioner was granted higher grade promotion on 1.7.1978, the same has been rebutted by the petitioner in his reply affidavit. No material has been placed before me by the Board by either filing any affidavit or statement to controvert this averment of the petitioner that he has not been granted any higher grade promotion on 1.7.1978. The fact that the petitioner has secured only two higher grade promotions in the post of Mechanic Gr.I is also fortified by the pleadings in para 10 of the counter affidavit. So the petitioner has secured the first higher grade promotion in the post of Mechanic only with effect from 1.2.1983. The petitioner secured the second higher grade pay promotion on 1.2.1990 on completion of 18 years of service from 1.2.1972. Though that he was given scale promotion on 1.8.1993, there is no dispute or objection raised by the respondents regarding the entitlement of the petitioner to get the scale promotion. The only controversy or lis between the petitioner and W.P.(C) No. 33671/2006 :
6. : the respondents is regarding the entitlement or otherwise of the petitioner in getting the third higher grade promotion in the scale of pay of Rs.3225-4805 as ordered by the competent authority of the Board in Ext.P4.
4. The matter in issue is covered in favour of the petitioner by considered the judgment of this Court in O.P.No.28388/1999. (produced as Ext.P10 in the reply affidavit). There, the issues were two fold. One was as to the entitlement of the petitioner therein for placement in the scale promotion. This case is not concerned with that matter of aspect. The main issue in that case was as to whether the employee who completes the requisite length of 18 years of service in the post concerned, is entitled for second grade promotion. The petitioner therein had duly completed the requisite length of service in the post concerned for claiming second higher grade promotion. The objection therein of the respondent Board was that the said scale of pay attached to the claim of higher grade pay happened to be identical to that of the scale of pay of Assistant Executive Engineer, and therefore, the employee therein is not eligible for the grant of the higher grade promotion. W.P.(C) No. 33671/2006 :
7. :
5. This court on elaborate consideration of that aspect of the matter, conclusively held in para 4 of that judgment as follows: " Regarding the second Higher Grade, the finding in Ext.P6 is that there is no provision for granting Higher Grade to mechanical staff above the scale of pay of Rs. 2090-3675. However, I find that Article VII of the Long Term Settlement which relates to grade promotions, contains the following clauses: "i. If a workman holding a post does not get a promotion/grade promotion within 10 years' of joining that post, then he will be granted a grade promotion in the normal promotion channel as per practice existing now. ii. If a workman holding a post does not get two promotions/grade promotions within a period of 18 years of joining that post, then he will be granted appropriate number of Grade Promotions so that he gets at least two promotions/Grade promotions on completion of 18 years of service in that post." A reading of these clauses would definitely go to show that a person who does not get two promotions/grade promotions within a period of 18 years of joining the post, will be granted appropriate number of grade promotion so that he gets at least two promotions/grade promotions on completion of 18 years of service in that post. The petitioner has all along been remaining as Foreman Grade II. He has got only one grade promotion on attaining 10 years to the scale applicable to Foreman Grade I as Rs. 1880-3375. Thereafter he was granted only scale promotion in the scale of pay of Rs. 2090-3675. Therefore, he is still entitled to one more grade promotion going by clause 2 of Article VIII. That can only be to the scale of Rs. 3225- 4805 as applicable to general Foreman. This only has been granted to the petitioner. In the above circumstances, I do not find any support for Ext.P6 order in the Long Term Settlement and, therefore, the reasoning in Ext.P6 as well as in the audit objection are unsustainable." 6. The judgment of this Court in O.P.28388/1999 (Ext.P10) was taken in appeal by the Board by filing W.A. No. 2169/06, which stands dismissed. Hence legal principles laid down in Ext.P10 have not been interfered with.
7. In the above said matter, this Court by Ext.P10 W.P.(C) No. 33671/2006 :
8. : judgment quashed the impugned audit objection as well as the impugned rejection order and declared that the petitioner therein is eligible to get not only the scale promotion but also second higher grade in the scale of pay of Rs. 3225-4805 and further directed that the pay as well as the retirement benefits to the petitioner would be refixed accordingly and arrears disbursed to him and that proceedings in this regard shall be issued and implemented by the 2nd respondent/Secretary of the K.S.E.B or other competent authority within a period of two months from the date of receipt of the certified copy of the judgment.
8. Having considered the matter, I am of the opinion that the main matter in issue in this Writ Petition is squarely covered by the ratio decidendi of the judgment of this court as per Ext.P10. In this case also, the main objection of the respondent Board is that though, the scale of pay attached to the third higher grade in the post of Mechanic Grade I viz; Rs. 3225-4805, happens to be identical to that prescribed for the post of Assistant Engineer and that the minimum educational qualification required to hold the post of Assistant Executive Engineer is Diploma/Degree in the engineering subject concerned and that the employees like W.P.(C) No. 33671/2006 :
9. : petitioner herein and the petitioner in Ext.P10 do not have that qualification and that on these ground they are disentitled from claiming the scale of pay of Rs. 3225-4805 by way of grade promotion.
9. This Court in Ext.P10 judgment held that so long as an employee does not get two promotions/grade promotions within the prescribed period from joining the post concerned, he/she will be granted the second grade promotion on completion of the prescribed length of service in that post for getting that grade promotion. In the instant case, the petitioner has stagnated in the post of Mechanic Grade I since 1.7.1992. He has never been granted next regular promotion in any of the next promotion posts, though he was fully eligible for such promotions. He has only secured first grade promotion and the second grade promotion on completion of 10/11 years and 18 years respectively. Entitlement of the petitioner for the scale promotion in question is beyond any controversy in this case.
10. The contention of the respondent Board in Ext.P7 that the petitioner is not eligible for the grade promotion in the scale of pay of Rs. 3225-4805 on the ground that within 25 years of his initial W.P.(C) No. 33671/2006 :
10. : commencement of his service in the Board, he secured three grade promotions and two promotions (1.11.1970 and 1.7.1972) etc. is untenable. Firstly, the petitioner has actually secured only two grade promotions in the post of Mechanic Grade I and not three grade promotions. Further it is immaterial whether the petitioner initially entered into service as Fitter and secured promotion as Mechanic on 1.2.1972. What is mandated in clause (iii) of Ext.P1 is that if a workman who holds the post does not get at least three promotions/Grade promotions within a period of 25 years of service in joining that post, then he will be granted appropriate number of grade promotions so that at least he will get three promotions/Grade promotions on completion of 25 years of service in that post. So what is relevant is not as to whether the petitioner has secured at least three promotions/Grade promotions within a period of 25 years after the commencement of his initial entry into the services of the respondent Board, but as to whether he has secured three promotions/grade promotions in the post of Mechanic Gr.I, in which he has stagnated. The petitioner has not secured even a single regular promotion after getting appointment as Mechanic Grade I. So also, the petitioner till date has secured W.P.(C) No. 33671/2006 :
11. : only two grade promotions after getting regular promotion as Mechanic Grade I. It is also relevant to note that the petitioner has completed 25 years of service as Mechanic Grade I on 1.2.1997. The ratio laid down in Ext.P10 is that if the workman does not get two promotions/Grade promotions within a period of 18 years of joining that post, then he will be granted the second Grade promotion. So on applying the ratio of that judgment, I am constrained to hold that if a workman holding a post of Mechanic Grade I, does not get at least three promotions/Grade promotions within a period of 25 years after joining to the post of Mechanic Grade I, then he is entitled to be granted appropriate number of grade promotions as ordered in clause (iii) of Ext.P1 as well as the order dated 24.4.1990 cited in Ext.P4. It is true that the scale of pay of Rs. 3225-4805 in question may be identical to the pay scale prescribed for the post of Assistant Executive Engineer. So also it may be that the educational qualification prescribed for the post of Assistant Executive Engineer in the scale of pay of Rs. 3225-4805 is Diploma/Degree in engineering which the petitioner does not possess. But that is not material. W.P.(C) No. 33671/2006 :
12. :
11. It is beyond dispute that the third higher grade pay in the post of Mechanic Grade I is Rs. 3225-4805 is the scale of pay to the promotional post of General Foreman. If the respondent Board Authorities had prescribed identical scale of pay for the higher post of Assistant Executive Engineer as well as the post of General Foreman, which is third higher grade pay for Mechanic Grade I, that is not a matter of controversy which is to be resolved by this Court, in this writ proceedings. That should have been duly taken care of by the authorities of the Board while prescribing various scale of pay to various posts in the higher promotion in the respondent Board. Therefore to reject the claim of the petitioner on the ground that he does not have higher educational qualification prescribed for the post of Assistant Executive Engineer is vitiated by irrelevant considerations and malice in law.
12. In the circumstances, I duly follow the ratio of the judgment of this Court as per Ext.P10. Accordingly, I hold that the impugned Ext.P7 is vitiated by irrrelevant considerations and malice in law and therefore, ultravires and unenforceable.
13. So I have no hesitation to hold that the petitioner in Ext.P10 is to succeed in this view of the matter. Consequently, W.P.(C) No. 33671/2006 :
13. : Ext.P7 is set aside. It is declared that the petitioner is entitled to get third higher grade promotion in the scale of pay of Rs. 3225- 4805 with effect from 1.2.1997 as ordered in Ext.P4. As the petitioner has already taken Voluntary Retirement from Service on 5.4.1999, I further direct that the pay as well as the retirement benefits of the petitioner should be re-fixed accordingly, and arrears disbursed to him without further delay. The proceedings in that regard shall be issued and implemented by the Secretary of the first respondent K.S.E.B or other competent authority within a period of two months from the date of receipt of a certified copy of this judgment. The O.P stands finally disposed by allowing the same as above. However, there will be no order as to costs. ALEXANDER THOMAS Judge. AL/-