Kerala High Court
Saraswathy Prabha A vs Kerala State Electricity Board ... on 26 July, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
WEDNESDAY, THE 26TH DAY OF JULY 2023 / 4TH SRAVANA, 1945
WP(C) NO. 15613 OF 2019
PETITIONER:
SARASWATHY PRABHA A, AGED 49 YEARS
ASSISTANT EXECUTIVE ENGINEER(CIVIL),
HIGHER GRADE, DESIGN CELL, KOZHIKODE.
BY ADVS.
SRI.IMAM GRIGORIOS KARAT
SRI.N.KRISHNA PRASAD
RESPONDENTS:
1 KERALA STATE ELECTRICITY BOARD LTD
REPRESENTED BY ITS SECRETARY, VYDHUTHI BHAVAN,
PATTOM POST, THIRUVANANTHAPURAM, PIN CODE-695 004.
2 THE CHIEF ENGINEER(HRM), VYDHUTHI BHAVAN, PATTOM
POST, THIRUVANANTHAPURAM, PIN CODE-695 004.
KSE BOARD LTD.
3 THE SECRETARY(ADMINISTRATION), KERALA STATE
ELECTRICITY BOARD LIMITED, VYDHUTHI BHAVAN,
PATTOM POST, THIRUVANANTHAPURAM, PIN CODE-695 004.
BY ADV SRI.M.K.THANKAPPAN - SC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
26.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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2
JUDGMENT
The petitioner joined the services of the Kerala State
Electricity Board (KSEB) as an Assistant Engineer (Civil) with effect
from 07.01.1993, pursuant to the Advice Memo issued by the
Kerala Public Service Commission (KPSC). She reported for duty
on 06.03.1993, but availed 'Leave Without Allowances' from
02.11.1993 to 15.05.1994, to join her spouse abroad. The
petitioner rejoined duty after the leave on 18.05.1994, but without
noticing that she had spent the afore mentioned period under
'Leave Without Allowances', she was granted her next promotion
as Assistant Executive Engineer (Civil) on 22.02.1997, after she
had completed the period of probation in the entry post.
2. While so, through Ext.P6, which was issued on
24.12.2018, the Deputy Chief Engineer of the KSEB ordered that
the petitioner's pay and increments in the cadre of Assistant
Engineer (Civil) shall be regulated only from 18.05.1994, when
she joined back after availing 'Leave Without Allowances'; and
consequently that her pay in the cadre of Assistant Executive
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Engineer (Civil) will be regulated with effect from 23.12.1997,
contrary to her earlier ordered promotion. This order is under
challenge by the petitioner in this writ petition, who asserts that
the principles of 'sit back theory' is applicable against the KSEB,
in as much as they are trying to revise the promotion given to
her on 22.02.1997, after more than ten or eleven years.
3. Sri.N.Krishna Prasad - learned counsel for the
petitioner, further explained his client's case, affirming that she
had availed of 'Leave Without Allowances' to join her spouse
abroad and that, after she rejoined duty, she completed
mandatory period of probation, thus being correctly granted
subsequent promotion on 22.02.1997. He argued that, even
assuming that the date assigned was wrong, it could not have
been corrected - as has been now done by the KSEB - more than
twenty years later, through Ext.P6. He relied upon the judgment
of this Court in Kerala State Electricity Board & Ors. v.
Sri.P.Sasidharan [2020 (3) KLT 514] in support, to contend that
the well enshrined principles of 'sit back theory' would apply in
this case and hence, that Ext.P6 is illegal and unlawful. He
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concluded his submissions saying that, on account of the change
in the date of promotion as Assistant Engineer (Civil) given to her
through Ext.P6, she had to wait until February 2023, to be then
promoted as an Assistant Executive Engineer (Civil), from which
post she retired, on attaining the age of superannuation. He thus
prayed that Ext.P6 be quashed.
4. Sri.M.K.Thankkapan - learned Standing Counsel for the
KSEB, relied upon Clause 5 of Appendix XIIC of Part I of the
Kerala Service Rules, to argue that law is now well settled, that a
person who avails of 'Leave Without Allowances' before becoming
permanent in the cadre, will only be allowed to return and join
as a new entrant. He argued that said Clause only protects their
right to rejoin service, and not their benefits and such other,
which had accrued prior to availing of the leave. He submitted
that, however, without noticing this, the petitioner had been
granted promotion as Assistant Executive Engineer (Civil) with
effect from 22.02.1997; and that it is only when the gradation list
was prepared in the year 2009, was this noticed, leading to
Ext.P6 order being issued by way of a correction, rather than a
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punitive step, as is now being sought to be projected by the
petitioner. He thus prayed that this writ petition be dismissed.
5. I have examined Ext.P6 which is the impugned order
issued by the KSEB.
6. The said order proceeds on the premise that the
promotion given to the petitioner as Assistant Executive Engineer
on 22.02.1997 was wrong, because this has been done without
reckoning the fact that she had availed Leave without Allowances
before her probation had been declared and had rejoined only on
18.05.1994. Going by the aforementioned Clause of Appendix 12C
of Part I KSR, I do not think that this stand of the KSEB is wrong
and to that extent, I am of the view that direction No.3 in
Ext.P6, namely that 'pay and associated increment in the cadre of
Assistant Engineer (Civil) will be regulated from 18.05.1994' is in
error.
7. However, when it comes to the date of probation of
the petitioner as Assistant Executive Engineer - even though she
would have been entitled to it only with effect from 23.12.1997,
as per the afore reasoning - she was offered the same with effect
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from 22.02.1997 and this continued without any change for over
21 years thereafter.
8. Therefore, even assuming that date of promotion given
to the petitioner was wrong, the question is whether the KSEB
could have tried to 'rectify' it more than two decades later,
though it is conceded before this Court by the learned Standing
Counsel for the KSEB that the gradation list was prepared as early
as in the year 2009. It is here that the judgment of this Court in
P.Sasidharan (supra) comes to apply, since it declares the law
specifically as to the manner in which the principles of 'sit back'
theory applies.
9. A glance through the afore precedent would render it
indubitable that the learned Bench had considered several
judgments of the Honourable Supreme Court and that of this
Court, to hold that when a person is allowed to continue in a
post for large period of time, for no reason that can be attributed
to him/her, but solely on account of lapse on part of the
employer, the principles of 'sit back' theory comes to play and
such position cannot be then altered.
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10. I am in respectful affirmation of the declarations in
P.Sasidharan (supra), and am certainly of the view that Ext.P6, to
the extent to which it orders pay and allowances of the petitioner
in the cadre of Assistant Executive Engineer to be regulated with
effect from 23.12.1997 rather than from 22.02.1997, is incapable
of approval.
11. That said, however, this does not mean that this Court
has found the action of the KSEB to be illegal, but only that they
did not do so within reasonable time, thus giving rise to the
application of 'sit back' theory in its full rigour.
12. Axiomatically, this Court cannot hold that the
promotion of the petitioner as Executive Engineer in February
2023 - taking note of the assigned date of promotion as Assistant
Executive Engineer on 23.12.1997 - is in error; and I do not
propose to disturb it.
13. In fact, it is conceded at the Bar by both the learned
counsel for the petitioner, as also the learned Standing Counsel
for the KSEB, that a median approach can be adopted in this
case, so that the interests of both sides can be equally protected.
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Resultantly, I allow this Writ Petition and set aside Ext.P6,
however, only to the extent to which it orders the pay and
allowances of the petitioner to be regulated with effect from
23.12.1997 in the post of Assistant Executive Engineer; but
confirming all other directions therein.
I reiterate that, as a consequence of the above, the
petitioner's promotion as Executive Engineer in February 2023 is
also left without interdiction.
Sd/-
RR DEVAN RAMACHANDRAN
JUDGE
WPC 15613/19
APPENDIX OF WP(C) 15613/2019
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE RELEVANT EXTRACT OF THE
GRADATION LIST OF ASSISTANT
ENGINEERS(CIVIL) IN THE KSEB ON
30.11.1999 ANBD PUBLISHED ON 19.02.2000.
EXHIBIT P2 TRUE COPY OF THE ORDER DATED 03.08.2010.
EXHIBIT P3 TRUE COPY OF THE OBJECTION DATED
08.06.2018.
EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED
17.07.2018 IN WRIT PEITTION
NO.23633/2018.
EXHIBIT P5 TRUE COPY OF THE PROCEEDINGS DATED
09.10.2018.
EXHIBIT P6 TRUE COPY OF THE ORDER DATED 24.12.2018.
EXHIBIT P7 TRUE COPY OF THE CIRCULAR DATED
27.05.2019 ALONG WITH THE LIST.
RESPONDENT EXHIBITS
EXHIBIT R1(a) TRUE COPY OF THE RELEVANT PAGES OF THE
GRADATION LIST AS ON 30-11-1999.
EXHIBIT R1(b) TRUE COPY OF DETAILS OF LEAVE WITHOUT
ALLOWANCES OF PETITIONER.
