Kerala High Court
Assis H vs Kerala State Electricity Board on 4 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
THURSDAY, THE 04TH DAY OF MARCH 2021 / 13TH PHALGUNA, 1942
WP(C).No.18862 OF 2016(G)
PETITIONER:
ASSIS H, OVERSEER, ELECTRICLA SECTION,
KERALA STATE ELECTRICITY BOARD LTD.,
PAZHAYANNUR, THRISSUR DISTRICT.
BY ADVS.
DR.K.P.SATHEESAN (SR.)
SRI.ELIAS KURIAN
SRI.P.MOHANDAS (ERNAKULAM)
SRI.K.SUDHINKUMAR
SMT.SHYNI GEORGE
SRI.S.VIBHEESHANAN
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 LTD.,
VYDYUTHI BHAVAN, PATTOM,
THIRUVANANTHAPURAM- 695 004
3 THE EXECUTIVE ENGINEER
KERALA STATE ELECTRICITY BOARD LTD.,
OFFICE OF THE EXECUTIVE ENGINEER,
ELECTRICAL DIVISION, VADAKKANCHERRY,
THRISSUR- 680 582
BY ADV.
SMT.ANEETHA A.G., SC
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
04.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WPC 18862/16
2
JUDGMENT
The petitioner, while working as a
Lineman, was promoted as an Overseer in the
services of the Kerala State Electricity Board
(KSEB for short) on 10.02.2011. The promotion
order, namely Ext.P1, contained a clause that
those promotees, who are qualified to be
considered for the post of Meter Readers and
who choose that channel of promotion, will
have to give an undertaking that they are
willing to opt for the post of Meter Readers
and not the post of Overseer. He admits that
he had made such an undertaking and that he
was awaiting his appointment as a Meter
Reader, which he says never fructified, until
02.07.2012 when he was offered such post, but
only temporarily.
2. The petitioner says that this
temporary promotion never metamorphosed into a
regular one and therefore, that he approached
WPC 18862/16
the KSEB for being construed as having been
promoted as an Overseer in the year 2011,
based on a subsequent Government Order dated
10.02.2014; which led to Ext.P4 order being
issued, granting him notional promotion as
Overseer with effect from 03.01.2016, thus
granting benefits only from that date. He says
that Ext.P4 is in error since his option to
move over as a Meter Reader was never accepted
nor given effect to by the KSEB and therefore,
that he should be construed to have been
promoted as an Overseer on 10.02.2011,
notwithstanding his option made in terms of
Ext.P1.
3. The petitioner thus prays that Ext.P4
be set aside, as also the consequential Ext.P5
order; and the 2nd respondent be directed to
restore his seniority in the cadre of Overseer
with effect from 10.02.2011 or to promote him
as a Meter Reader regularly with effect from
WPC 18862/16
06.10.2004, which is the date on which he had
exercised his option for regular promotion of
Meter Reader.
4. In response to the afore submissions
made on behalf of the petitioner by his
learned counsel - Sri.K.Sudhin Kumar, the
learned Standing Counsel for the KSEB -
Smt.A.G.Anitha, submitted that Ext.P4 is
irreproachable since, as is evident therefrom,
the petitioner had given his undertaking to be
considered to be promoted in the post of Meter
Reader, thus relinquishing the promotion
offered to him in the year 2011 to the post of
Overseer. she submitted that since there were
no vacancies in the post of Meter Reader so as
to promote the petitioner thereafter, he was
again given an option, based on the Government
Order dated 10.02.2014, to be considered for
the post of Overseer and that this has been
done in his favour by the KSEB through Ext.P4.
WPC 18862/16
She submitted that since this was a benefit
given to the petitioner notwithstanding his
relinquishment to the post of Overseer given
by him earlier, he can only be promoted with
effect from the date of Ext.P4 and cannot be
given any benefit prior to that. She,
therefore, prayed that this Writ Petition be
dismissed.
5. When I evaluate the afore submissions,
it is indubitable - it being admitted - that
the petitioner was originally promoted as an
Overseer on 10.02.2011. Since the promotion
order stipulated that a person who intends to
be promoted as a Meter Reader can give an
undertaking to such effect and thus give up
his promotion as Overseer, the petitioner did
so, anticipating that he will be entitled to a
faster promotion, since there were several
vacancies available in that stream. However,
the expectation of the petitioner was thrown
WPC 18862/16
to winds when the KSEB took the stand that
there were no vacancies and he was thus
promoted as a Meter Reader only temporarily on
02.07.2012.
6. Thereafter, since the petitioner was
never promoted substantively to the post of
Meter Reader, he appears to have approached
the KSEB seeking that his promotion as an
Overseer be restored with effect from
10.02.2011, which then led to Ext.P4 order,
whereby, though he was granted such promotion
it was deemed to be only with effect from
03.01.2016, leading to his seniority being
fixed only from that date. It is this which
petitioner is aggrieved about and he bewails
that he has lost five years for no reason,
stagnating in the post of Lineman, since he
would have been considered for further
promotions for the stream of Overseer much
earlier.
WPC 18862/16
7. The contra case of the KSEB, as argued
by Smt.A.G.Anitha, is that since the
petitioner has relinquished his promotion to
the post of Overseer, he cannot claim it back
and therefore, that Ext.P4 cannot be found at
fault.
8. However, there is a clear fallacy in
this argument because, if the petitioner had
voluntarily given up and relinquished his
promotion as an Overseer permanently, then
there is no reason why the KSEB should have
given him the said promotion in the year 2016,
though I am aware that they say that this was
done based on the subsequent Government Order.
There can be little doubt that the normative
principle of law is that if the petitioner had
permanently relinquished his promotion as
Overseer, he cannot be granted the said
benefit thereafter and he could have been
considered for promotion only as a Meter
WPC 18862/16
Reader. The fact that the petitioner was again
granted the promotion of Overseer notionally
with effect from 03.01.2016 would luculently
indicate that the relinquishment was treated
even by the KSEB as being not permanent.
8. That apart, had the petitioner's
option to be considered for promotion as a
Meter Reader been properly acted upon by the
KSEB between 2011 and 2016, the case would
have been different. However, what is evident
in this case is that the said option never
fructified and the KSEB never appointed him as
a Meter Reader, which is manifest from the
fact that he was given only a temporary charge
as Meter Reader on 02.07.2012. Since he was
never given a substantive appointment in the
said post, he continued as Lineman for all
purposes and in 2016, on his request, the KSEB
restored his promotion as Overseer, however,
treating it as being notionally until
WPC 18862/16
03.01.2016.
9. I, therefore, find force in the
submissions of Sri.K.Sudhin Kumar - learned
counsel for the petitioner, that Ext.P4 order
has not considered any of these aspects, but
has mechanically concluded that even though
the petitioner is entitled to promotion as an
Overseer, it can only be with effect from
03.01.2016, though he continued in the
original post of Lineman without being granted
promotion as a Meter Reader all this while.
In the afore circumstances, I order this
writ petition and set aside Exts.P4 and P5;
with a consequential direction to the
competent Authority of the KSEB to rehear the
petitioner and take an appropriate decision on
his request for being considered, either as
having been promoted as an Overseer with
effect from 10.02.2011; or that he be
construed to have been promoted as a Meter
WPC 18862/16
Reader with effect from 06.10.2004, after
analysing whether vacancies of Meter Reader
were available during the relevant period.
The afore exercise shall be completed by
the competent Authority of the KSEB as
expeditiously as is possible, but not later
than three months from the date of receipt of
a copy of this judgment.
Sd/-
DEVAN RAMACHANDRAN
RR JUDGE
WPC 18862/16
APPENDIX
PETITIONER'S/S EXHIBITS:
P1 TRUE COPY OF THE RELEVANT PAGES OF
THE BOARD ORDER
NO.EB4(B)/PRO/90/OVR(REV)/2011 DATED
10-02-2011.
P2 TRUE COPY OF THE LETTER UR
UNDERTAKING DATED 11-02-2011.
P3 TRUE COPY OF THE ORDER ISSUED BY THE
EXECUTIVE ENGINEER, ELECTRICAL
DIVISION, ALATHUR DATED 2-7-2012.
P4 TRUE COPY OF THE ORDER NO.
EB4(B)/OVT/PRO/REVIEW/2015 DATED 3-
1-2016 ISSUED BY THE 2ND RESPONDENT.
P5 TRUE COPY OF THE LETTER NO.EB
4/WKY/PROMOTION/2016- 17/71 DATED
10-05-2016. GIVEN BY THE 3RD
RESPONDENT.
P6 TRUE COPY OF THE OPTION SUBMITTED BY
THE PETITIONER FOR APPOINTMENT AS
METER READER DATED 6-10-2004.
P7 TRUE COPY OF THE OPTION EXERCISED BY
THE PETITIONER FOR APPOINTMENT AS
METER READER DATED 6-7-2007
RESPONDENTS' EXTS:
EXT.R1(A) REQUEST DATED 28.08.2014 TO THE 2ND
RESPONDENT
