Allowed

Jessy Uthuppan and Another v. Kerala State Electricity Board and Ors.

Kerala HC11 Nov 2011WP(C)/6534/2010

Case brief

AI extract

What is this about?

This court allowed a writ petition challenging rejection of promotion claims by clerks employed under a compassionate employment scheme. The judge distinguished precedents barring casual service for seniority, holding that specific appointment terms and settlement clauses entitled petitioners to have their temporary CLR service reckoned as qualifying service for promotion with seniority from the s

What did the court decide?

Quashed the impugned orders rejecting promotion claims; directed respondents to promote petitioners to Junior Assistant/Cashier with seniority reckoned from the date of reporting to CLR service.

Jessy Uthuppan and Another Vs Kerala State… — Pension and Retirement Benefits | Kerala HC (2011)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM

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FRIDAY, THE 11TH NOVEMBER 2011 / 20TH KARTHIKA 1933

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WP(C).No. 6534 of 2010(N)

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PETITIONER(S):

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1. JESSY UTHUPPAN, W/O. SABU JACOB, AGED 42 YEARS, CASHIER TRAINEE, ELECTRICAL SECTION, KSEB NATTAKAM, KOTTAYAM, RESIDING AT CHIRAYIL HOUSE, POOVANTHURUTHU P.O., KOTTAYAM.

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2. AMBIKA DEVI K.K., W/O. REGHU NATH, AGED 34 YEARS, CASHIER TRAINEE, ELECTRICAL SECTION, KAVUMBHAGAM, THIRUVALLA, RESIDING AT KANURVALLY KOTTU HOUSE, THALAYAR, KUTTOOR P.O., THIRUVALLA.

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BY ADV. SRI.SAJITH KUMAR V.

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RESPONDENT(S):

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1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM.

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2. THE CHIEF ENGINEER (HRM), VYDHYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM.

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3. EXECUTIVE ENGINEER, KSEB, PALLAM DIVISION, KOTTAYAM.

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4. EXECUTIVE ENGINEER, KSEB, THIRUVALLA DIVISION, THIRUVALLA.

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BY ADV. SRI.PULIKOOL ABUBACKER, SC, KSEB.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/11/2011, ALONG WITH WPC NO.6885 OF 2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 6534 of 2010(N)

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXT.P1:	COPY OF THE APPOINTMENT ORDER NO.EBEW/680/94 DATED 17/03/1995 ISSUED ON BEHALF OF THE 1ST RESPONDENT.
EXT.P2:	COPY OF THE ORDER NO.EB5(A)/55/98/(60) DATED 22/04/1999 ISSUED ON BEHALF OF THE 1ST RESPONDENT.
EXT.P3:	COPY OF THE RELEVANT PAGES OF THE 2007 SETTLEMENT ISSUED AS PER B.O.(FB) NO.628/2007(PSI/101/2006) DATED 19/03/2007 BY THE 1ST RESPONDENT.
EXT.P4:	COPY OF THE BO NO.1136/96(PSII/1400/95) 15/05/1996 ISSUED ON BEHALF OF THE 1ST RESPONDENT.
EXT.P5:	COPY OF THE REPRESENTATION DATED 29/04/2006 SUBMITTED BY THE 1ST PETITIONER BEFORE THE 2ND RESPONDENT.
EXT.P6:	COPY OF THE REPRESENTATION DATED 19/11/2009 SUBMITTED BY THE 1ST PETITIONER BEFORE THE 2ND RESPONDENT.
EXT.P7:	COPY OF THE REPRESENTATION DATED 19/11/2009 SUBMITTED BY THE 2ND PETITIONER BEFORE THE 2ND RESPONDENT.
EXT.P8:	COPY OF THE NOTIFICATION NO.EB3/G1/20%/99 DATED 08/09/1999 ISSUED BY THE 2ND RESPONDENT.
EXT.P9:	COPY OF THE JUDGMENT IN WP(C) NO. 36112 OF 2009 DATED 15 DECEMBER 2009.
EXT.P10:	COPY OF THE ORDER NO.EB.3/ WP(C) NO. 36112/2009 DATED 25/01/2010 ISSUED BY THE 2ND RESPONDENT.
EXT.P11:	COPY OF THE FIXED DEPOSIT RECEIPT ISSUED BY THE ELECTRICITY BOARD EMPLOYEES SOCIETY, KOTTAYAM FOR Rs.10,000/-.
EXT.P12	COPY OF THE ORDER DATED 10/12/2007 ISSUED BY THE 2ND RESPONDENT.

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RESPONDENT'S EXHIBITS:- NIL.

//TRUE COPY//

P.A. TO JUDGE

C.K. ABDUL REHIM,J.

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W.P.(c) No.6534 OF 2010 & W.P.(c) No.6885 OF 2010

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DATED THIS THE 11^th DAY OF NOVEMBER, 2011

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J U D G M E N T

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The petitioners in W.P (c) No.6534/2010 are working

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as Office Attendants/Cashier trainees in the 1^st respondent Board. They were appointed in the service of the Board under the compassionate employment scheme (Dying-inharness scheme). Even though they were appointed as Office Attendants Gr-II, they could not be given regular appointment for want of vacancies. Hence they were temporarily appointed as CLR worker with effect from 17-03-1995, 13-12-1994 respectively. The petitioners were given increments and other service benefits with effect from the date of their appointment as CLR worker. Later, audit objection was raised with respect to payment of such benefits. But the matter was decided through Ext.P3 settlement arrived between 1^st respondent Board and its employees. By virtue of Clause 23 of Ext.P3 'Memorandum

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W.P.(c) Nos.6534, 6885/2010 -2-

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of Settlement' it was agreed that that the actual period of CLR service with respect to the employees appointed under compassionate scheme will be reckoned as qualifying service for the purpose of increments, weightage and other service benefits. The petitioner in W.P (c) No.6885/2010 also got appointment as CLR worker with with effect from 21-06-1995 under the compassionate scheme. He entered into service as CLR worker on 03-07-1995.

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The method fo appointment to the post of Junior Assistant/Cashier in the 1^st respondent Board is through direct recruitment and promotion from the post of Office Attendants and other subordinate services. 15% quota was earmarked for filling up vacancies through promotion as above. Through Board's order dated 14-07-1995, the eligibility for considering such promotion was re-fixed. It was insisted that, those who secure 40% or more marks in English and 40% or more aggregate marks in S.S.L.C examination, alone will be eligible for promotion, subject to qualifying the suitability test conducted by the Public

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W.P.(c) Nos.6534, 6885/2010 -3-

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Service Commission (PSC). But through Ext.P4 order, the 1^st respondent had clarified that the re-fixation of eligibility will not be applicable to those who are in the subordinate service, joined on or before 14-07-1995. In view of the exemption granted, the petitioners herein made representations seeking appointment as Junior Attendants/Cashier. On approach made before this court, in Ext.P9 judgment (in W.P (c) No.6534/2010) and in Ext.P7 judgment (in W.P (c) No.6885/2010), the 1^st respondent Board was directed to consider the claims of the petitioners for appointment to the post of Junior Attendants/Cashier and to take appropriate decision. But rejecting such claims, Ext.P10 order (in W.P (c) No.6534/2010) and Ext.P8 order (in W.P (c) No.6885/2011) were issued. The petitioners are challenging the above said orders and inter alia seeking direction commanding the respondents to effect appointments/promotions as Junior Assistants/Cashiers, with effect from 22-03-2000 and 17-12-1999 respectively.

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Contention of the petitioners are mainly to the

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W.P.(c) Nos.6534, 6885/2010 -4-

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effect that they were appointed as CLR worker only when they were selected for appointment in the Board under the compassionate employment scheme. They were not given postings in the regular service only for want of vacancy. The Petitioners have drawn attention of this court to the orders of the appointment issued as CLR worker. Referring to Ext.P1 (in W.P (c) No.6534/2010) it is pointed out that the appointment of the petitioner as CLR worker was on temporary basis, till appointment to the regular service in which he was originally selected. The appointment order specifically mention that, when posting to regular establishment is effected, the seniority will be counted from the date on which he had reported for duty as CLR worker. The petitioners are also relying on Ext.P3 settlement, especially clause No.23 thereof, which provides that the actual period put in as CLR service will be reckoned as qualifying service for increments, weightage and other service benefits. According to the petitioners, the undertaking given through the order of appointment and

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W.P.(c) Nos.6534, 6885/2010 -5-

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subsequent settlement cannot be violated. Therefore, the petitioners are entitled to get promotion reckoning their CLR service, is the contention.

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On a perusal of Ext.P10 in (W.P (c) No.6534/2010) and Ext.P8 in the other case, it is evident that the claim of the petitioners were rejected on the ground that the exemption provided from acquiring the qualifications and the suitability test, is available only to those employees in the regular subordinate service of the Board on or before 14-07-1995, and such benefit cannot be extended to those who were in the CLR service. The benefit granted under the long term settlement is only for the limited purpose of granting monetary benefits and the exemption from qualification provided as above cannot be exempted to the petitioners who were not absorbed into the regular service before 14-07-1995.

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The respondents relied on a decision of this court in James V. Assistant Secretary (1995 (2) KLT SN 12) as well as a decision of the Hon'ble Supreme Court in K.

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W.P.(c) Nos.6534, 6885/2010 -6-

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Madalaimuthu and another V. State of Tamil Nadu

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and others (2006) 6 SCC 558 to content that casual service cannot be counted for seniority and persons who are appointed temporarily to discharge functions in a particular post, selected without recourse to the normal recruitment rules, cannot be said to be in the service till such time such appointments are regularised. In the counter affidavit the 1^st respondent it is further contended that clause 23 in the long term settlement is only having the effect of reckoning CLR service for increment, weightage and other service benefits and it relate only to the monetary benefits, but it cannot be counted for seniority or for the purpose of promotion. The terms of the appointment order only provides that the seniority in the regular post will be reckoned from the date from of commencement of CLR service. But the seniority can be reckoned only for the limited purpose of regularisation, is the contention.

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Learned Senior Standing Counsel Sri. Pulikool Abubacker, argued that the claim of the petitioners were

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W.P.(c) Nos.6534, 6885/2010 -7-

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considered by the Board and sufficient reasoning had been given for rejecting the claims. It is contended that persons like that of the petitioners if given promotion will result in overlooking seniority of persons those who were appointed in the regular service on earlier dates, before absorption of the petitioners. He specifically pointed out that CLR service which is casual in nature cannot be reckoned for the purpose of seniority or promotion as held in the decisions referred to above.

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The limited issue arising for consideration is as to the terms of appointment and the terms of the long term settlement will enable the petitioners to claim reckoning of the CLR service for the purpose of promotion to the post of Junior Assistant/Cashier. I am of the view that the specific terms in Ext.P1 and other similar orders provides that the seniority at the time of absorption will be reckoned from the date of reporting duty as CLR worker. Contention of the respondent that it is meant only for the purpose of fixing seniority at the time of regularisation cannot be accepted on

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W.P.(c) Nos.6534, 6885/2010 -8-

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its specific literal meaning. It lead to the interference that in the cadre to which they were absorbed in the regular establishment they attains seniority with effect from the date of appointment as CLR worker. In other words, when the petitioners were absorbed into the regular establishment as Office Attendants, their seniority in that cadre will remain fixed as the date on which they reported duty as CLR workers. Further, by virtue of the long term settlement, the Board had agreed that the CLR service of appointees under the compassionate scheme will be reckoned as qualifying service for increment, weightage and other service benefits. The “other service benefits” specified in Clause 23 will include seniority for the purpose of promotion. Admittedly those who entered in the feeder category of Office Attendants prior to 14-07-1995 is exempted from undergoing the suitability test and from the minimum cut-off marks prescribed. Contention of the respondents that the petitioners have entered into service of the Board only on the dates they were absorbed, cannot

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W.P.(c) Nos.6534, 6885/2010

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-9-

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be accepted, when it is evident that they were provisionally appointed as CLR worker only because of lack of vacancy available in regular service, and when it is evident that the terms of appointment specified that their joining duty as CLR worker will be considered as the date of seniority when posting to regular establishment. If the petitioners have got seniority in the cadre of Office Attendants from the date of reporting duty as CLR worker, then I find no reason to hold that the petitioners cannot be exempted from the eligibilities prescribed to those who were appointed prior to 14-07-1995.

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The dictum laid in James's case (cited supra) that the casual service cannot be counted for seniority, is only general principle in the matter of appointment in public sector. But the facts in the case at hand can be distinguished, because, there was a specific understanding and agreement offered by the employer regarding the seniority. In Madalaimuthu 's case (cited supra) the Hon'ble Supreme Court observed that seniority of a person

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W.P.(c) Nos.6534, 6885/2010

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appointed temporarily to a particular post without recourse of selection through the normal recruitment rules can be counted only from the date on which his service is regularised. But Sri. V. Sajith Kumar learned counsel for the petitioner points out that the said decision was rendered only in respect of a dispute of inter-se seniority between those who got temporary promotion and the regular promotees. The Hon'ble Supreme Court observed that those who have got temporary promotions cannot claim seniority over persons who are regularly promoted to the cadre in question. In the case at hand, for the very same reason that the terms of appointment confers a special right, the facts can be distinguished.

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I am of the considered opinion it is not be justified on the part of the respondents to go back from the offer made at the time of appointment. Yet another aspect is as to whether the term 'other service benefits' mentioned in Clause 23 of the long term settlement, will takes in 'seniority' within its ambit. But I am of the view that the

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W.P.(c) Nos.6534, 6885/2010 -11-

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said controversy need not be resolved, because the conditions prescribed at the time of appointment in the CLR service itself will entitle the petitioners to get their temporary service reckoned for promotion.

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Under the above mentioned circumstances the writ petitions are allowed and Ext.P10 in W.P (c) No.6534/2010 and Ext.P8 in W.P (c) No.6885/2010 are hereby quashed. The respondents are directed to take necessary steps to promote the petitioners to the post of Junior Assistant/Cashier, reckoning their date of reporting duty in the CLR service as the date of entry into the service of the Board, with due seniority assigned in the cadre of Office Attendants. The needful in this regard shall be done as early as possible at any rate within a period of 3 months from the date of receipt of a copy of this judgment.

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Sd/- C.K. ABDUL REHIM, JUDGE.

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AMG

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True copy

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P.A to Judge

Jessy Uthuppan and Another v. Kerala State Electricity Board and Ors.

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Jessy Uthuppan and Another v. Kerala State Electricity Board and Ors.

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