1. The core issue in these batch writ petitions are common and therefore, being disposed of by a common judgment.
2. Heard the learned counsel for the petitioners, the learned Standing Counsel for the Board and the learned counsel for the party respondents.
3. The petitioners in these writ petitions are challenging the qualification that is followed for promotion to the post of Sub Engineer (Electrical) for the quota earmarked among the feeder category of the employees working as an Overseer (Electrical). It is the case of the petitioners that promotions are being effected overlooking the qualifications prescribed by the Kerala State Electricity Board(hereinafter referred to as, the “Board”) in its Order dated 23.1.1981.
W.P(C)No.29243 of 2011
4. This writ petition is filed by the persons who are working as Overseer (Electrical) in the Board. The grievance of the petitioners is that the promotion was given to respondents 3 to 35 as Sub Engineer (Electrical) overlooking the qualification in the afore-noted Order dated 23.1.1981, produced as Ext.P1. The issue is related to one of the qualification prescribed in Ext.P1. The above qualification as prescribed in Ext.P1 reads as follows:
“Certificate obtained after having passed an examination conducted by the competent authority in the Trade of Lineman/Wireman/Electrician after 18 months course in (Industrial Training Institute (ITI) and six months inplant training and with not less than five years of service as Lineman/Second Grade Overseer (Electrical) under the Board.”
5. The case of the petitioners is that the respondents 3 to 35 do not possess the qualification as above.
6. To understand the promotional avenues of the Overseer (Electrical), brief facts are necessary which is stated as follows:
In Ext.P1 order of the Board, the method of appointment/recruitment in the cadre of Grade-I Overseer (Electrical) is prescribed in the ratio of 40:60 between direct recruitment and for promotion among the categories of Second Grade Overseer. Grade-I Overseer was re-designated as Sub Engineer (Electrical). Later, based on the long term settlement, the Board issued another Order dated 13.7.2007 and decided that the Meter Reader shall be treated as feeder category for promotion to the post of Sub Engineer (Electrical) against the 60% quota of Overseer Grade-II(Electrical). Thus, by virtue of Ext.P2 dated 13.7.2007, the post of Overseer shall cease to be the feeder category to the post of Sub Engineer (Electrical). Board again revised the decision in Ext.P2 by another order dated 2.08.2010 based on the meeting held with the recognized union by the Board. It is decided that the vacancies arising against the 60% quota for promotion to the post of Sub Engineer(Electrical) from the date of the modified settlement, will be apportioned between the Meter Readers and Overseers in the ratio of 50% for qualified Meter Readers with five years experience and 10% for qualified Overseers with five years experience. It is relevant to point out that the quota of 10% was subsequently increased to 20% with effect from 01.4.2011.
7. The case of the writ petitioner is that only regular students who had attended in Industrial Training Institute and had six months inplant training eligible for promotion for the quota earmarked for Overseers. According to the petitioners, the qualification prescribed originally in the Board Order dated 23.1.1981 is continued to hold the field even though for interregnum by virtue of Ext.P2, the Order of the Board dated 13.7.2007 the promotion to the post of Sub Engineer for the quota Overseer has been dispensed and the Meter Readers alone were treated as feeder category for promotion to the post of Sub Engineer (Electrical).
8. This writ petition is filed pursuant to the promotion effected based on the Circular dated 17.8.2010 produced as Ext.P4. It is particularly pointed out that in Ext.P4 the qualification is referred for the quota earmarked for the Overseers is with reference to the qualification prescribed in the Board Order dated 23.1.1981. The petitioners in the writ petition approached this Court challenging the promotion given to the party respondents herein in W.P(C) No.14111 of 2011 contending that they do not possess the requisite qualification. By the judgment in the above writ petition, this Court directed the Chief Engineer (HRM)(second respondent in this writ petition) to consider the representation highlighting the objection in granting promotion to the party respondents. The second respondent thereafter passed an order dated 24.10.2011 overruling the objections of the petitioners. This order is produced as Ext.P10. It is challenging this order along with the promotion granted to the party respondents, this writ petition is filed.
9. The stand of the Board is discernible from Ext.P10. It is stated in Ext.P10 that the opening of 10% quota to the category of Sub Engineer is from the quota of 60% provided for Meter Reader. It is also stated that the Overseers having the same qualification as that is prescribed for promotion from Meter Reader to Sub Engineer are eligible for promotion as Sub Engineer from the category of Overseer. Thus, it is clear that the second respondent did not rely upon the qualification prescribed in Ext.P1 in the Board Order dated 23.1.1981 and he was of the view that the qualification that is prescribed for the Meter Reader would be reckoned for the purpose of promotion as Sub Engineer from the category of Overseer.
W.P(C)No.29509/2012
10. This writ petition is filed by one Shajahan who was also the writ petitioner in W.P(C) No.29243 of 2011. This writ petition is filed challenging Ext.P10 notice dated 14.11.2012, inviting application for considering promotion to the cadre of Sub Engineer (Electrical) in the vacancy set apart for 20% quota. In the above notification, the qualification is prescribed as follows:
SSLC or equivalent with ITI (Electrician)/ Wireman/Electronics)/certificate in KGCE/MGTE.
11. It is pointed out that the prescription of the qualification is contrary to the prescription of the qualification prescribed by the Board in its Order dated 23.1.1981, produced as Ext.P1. It is also highlighted that while issuing notification in the year 2010, reference is made to the qualification prescribed by the Board in its Order dated 23.1.1981. However, Ext.P10 is conspicuously silent about the qualification that is required in terms of the Board Order dated 23.1.1981. This Court as per the interim order dated 14.12.2012 stayed all proceedings pursuant to Ext.P10. Therefore, no promotion has been effected.
W.P(C) No.29182 of 2012
12. This writ petition is filed by a person who is working as an Overseer. In this writ petition, the petitioner seeks to direct the second respondent to issue notification for the promotion contained in the qualification as shown in the Board Order dated 23.1.1981 for promotion as Sub Engineer(Electrical) for the quota earmarked for the Overseer.
W.P(C) No.29144 of 2012
13. This writ petition is filed by the persons who are working as Meter Readers. They are aggrieved by indiscriminate promotion of unqualified Overseer to the post of Sub Engineers. According to the petitioners, the unqualified Overseer do not possess qualification shall not be promoted as Sub Engineer (Electrical).
W.P(C) No.30122 of 2012
14. This writ petition is filed by the persons who are working as Overseers challenging Exts.P8 and P9 gradation lists on the ground that many of the seniors to the petitioners are unqualified to be promoted as Sub Engineer and they do not possess qualification prescribed in the Board Order dated 23.1.1981.
W.P(C) No.3628 of 2013
15. This writ petition is filed by the persons who are working as Overseers challenging the promotions given to the persons from Meter Reader quota alleging that the discrimination regarding qualifications for Overseers and Meter readers and they seek uniformity in prescription of the qualification. In this regard, they filed Ext.P6 representation and on account of non-consideration of Ext.P6 representation, this writ petition is filed.
16. On behalf of the Board, counter affidavits have been filed in all cases except W.P(C) No.30122 of 2012.
17. It is stated in the counter affidavit filed on behalf of the Board, the system of promotion among Overseers to the category of Sub Engineer was dispensed with and the post of the Meter Reader was reckoned as the feeder category for promotion as Sub Engineer. It is further stated that the category now earmarked for Overseer is from the quota of 60% provided for Meter Reader. It is further stated that the feeder category of Sub Engineer is Meter Reader and the qualification for the Meter Reader is ITI (Electrical/Wiremen/Electronics) only. It is concluded in the counter affidavit that the Meter Reader is the feeder category of the Sub Engineer and therefore, the qualification (ITI) for the appointment of the Meter Reader, shall be applied for the promotion as Sub Engineers. Thus, the promotion among Overseers to the post of Sub Engineers should have only the same qualification of the Meter Reader for promotion as Sub Engineer.
18. Some of the party respondents also have filed counter affidavit. It is contended by the party respondents that the courses undergone changes and presently there is no inplant training while undergoing ITI course. They also claimed that they are seniors to the petitioners and they possess qualification that is prescribed for the Meter Readers.
19. The Board is an entity constituted by the State Government in terms of Section 5 of the Electricity (Supply) Act, 1948 (hereinafter referred to as, the “Act”). By virtue of Section 79 (C) of the Act, the Board has power to make regulations in relation to the service conditions of the employee. The Board had provided qualification for promotion among Overseers quota to the cadre of Sub Engineer (Electrical) as per the Order dated 23.1.1981, produced as Ext.P1 in W.P.(C) No.29243 of 2011. It is true that for a certain period based on the long term settlement arrived with the employees union, the quota earmarked for the promotion among overseer is earmarked for the Meter Reader and Meter Reader alone was treated as feeder category for promotion. While restoring the quota for Overseers, it is apparent that there is no mention about the qualification for promotion among the feeder category of Overseers. Thus, it is understood that the qualification as prescribed in the Board Order dated 23.1.1981 would cover the qualification prescribed for Overseer as evident from Ext.P4 produced in W.P(C) No.29243 of 2011. There is clear mention about such qualification in Ext.P4. However, it is strange when the promotion was questioned, resulted in consideration of objection by virtue of the judgment in W.P.(C) No.14111 of 2011, the Chief Engineer(HRM) overruled the objection stating that the Overseers having the same qualification as that is prescribed for the promotion from the Meter Reader are eligible for promotion as Sub Engineer from the category of Overseer. It is also apparent to overcome this anomaly while issuing subsequent notification(dated 14.11.2012 produced as Ext.P10 in W.P(C) No.29509 of 2012), the Chief Engineer (HRM) had made no reference to the qualification which is referred for the Overseer mentioned in the Board Order dated 23.1.1981. The question, therefore, falls under narrow frame as to the prescription of the qualification.
20. No material is placed before this Court to show that the Board has taken any decision to prescribe the qualification for the Overseer is same that of the Meter Reader. On the other hand, the Chief Engineer (HRM) while issuing notification in the year 2010 (produced as Ext.P4 in W.P(C) No.29243 of 2011) had made reference to the qualification in the Board Order dated 23.1.1981. The stand in the counter affidavit is that quota of 10% which was subsequently increased to 20% out of Meter Reader will not result having different source of promotion on different yardsticks. Thus, the stand is that the qualification prescribed for the Meter Reader alone need to be followed for the purpose of promotion among Overseers. I do not find any legality of the stand taken by the official respondents. The second respondent has no case that while issuing notification in the year 2010 that the qualification one required is that of Meter Reader and not one under prescribed the Board Order dated 23.1.1981. This apparent contradictory stand taken by the Officials one under the notification in the year 2010 and in the notification issued in the year 2012 gives ample room to understand that promotions already effected and intended to be effected is without any clear stand taken by the Board as to the qualification. It is for the Board to state that the qualification is one required for a promotion as Sub Engineer among Overseers is that of the Meter Reader.
21. Normally this Court would have interfered with the promotion to the ineligible candidates, especially when eligibility has to be determined with reference to the date of occurrence of vacancies, however, taking note of the fact that the promotion among the quota of Overseers has been dispensed with atleast for a certain period and restoration of the quota does not necessarily to lead to conclusion that the qualification originally prescribed would also be restored, this court therefore desists from doing so. It is also need to be noted that courses on which qualification has been prescribed underwent drastic changes since 1981. No doubt in the absence of any other provisions prescribing qualification, to bring action inconformity with fairness original qualification would have governed the issue. Nevertheless, this Court is of the view that an employer is not powerless even for taking any action which can have retrospective effect, especially when it will not affect any vested or accrued rights of the employees. The petitioners rights are also not going to be affected and it will only result in postponement of their chances. The Hon'ble Supreme Court in T.R.Kapur and Others v. State of Haryana [AIR (1987) SC 415] held that the rules defining qualifications and suitability for promotion are conditions of service and they can be changed retrospectively (para 16).
22. It is to be noted that the qualification is prescribed with a view to achieve adequate efficiency of the post concerned and regular promotion is not based on any fortuitous circumstances. Therefore, keeping the objective factor in mind, this court refrain from interfering with promotion by leaving room for decision by the Board. Changed pattern of the course and syllabus since 1981 in respect of qualifying course impels this court to relegate on Board to act. There is ample space for the Board to act; the employer is the best guide and whose wisdom can be determined with reference to the power they wield under the Electricity supply Act. This power is enough to make up the leeway, and non exercise that power seemingly resulted in this conundrum. It is also open for the Board to consider the qualification that is prescribed similar for the Meter Readers for the Overseers as well. It is not for this Court to say that the original qualification would continue to hold to cover the field of qualification in the absence of any concrete decision by the Board. In fact, it was incumbent on the part of the Board to take such decision while restoring the quota for Overseers.
In the result, these writ petitions are disposed of with the following orders:
1. Ext.P10 produced in W.P(C) No.29243 of 2011 is set aside.
2. There shall be a direction to the Board to take a decision as to the qualification for the Overseers for promotion to the cadre of Sub Engineers within a period of three months from the date of receipt of a copy of this judgment.
3. The promotion already made and challenged in these writ petitions will be subject to the decision of the Board.
4. The interim order passed in the writ petitions will continue till the final decision is taken by the Board as to the qualification.
5. No promotion shall be effected from among the category of Overseer (Electrical) to the cadre of Sub Engineer (Electrical) till a final decision is taken by the Board as to the qualification of the Overseer (Electrical).
6. In view of the decision as above, W.P(C) No.3628 of 2013 does not survive for consideration and it is open for the petitioners therein to challenge the decision of the Board when it is made if they find that such decision is adversarial to them.
Sd/-
A.MUHAMED MUSTAQUE, JUDGE ln