V.S. Ajayan vs Kerala State Electricity Board Pattom, Thiruvananthapuram, Represented By Its Secretary

Murali Purushothaman, J

The petitioner entered service in the Kerala State Electricity Board (for short, 'Board') as Assistant Engineer on 05.07.1996 in 40% direct recruitment quota from open market. At the time of appointment, the petitioner possessed B.Tech degree in Civil Engineering and also M.Tech in Civil Engineering. He had passed Account Test (Lower) and Departmental test for Executive Staff of KSEB conducted by the Kerala Public Service Commission. The petitioner states that he became qualified for promotion to the post of Assistant Executive Engineer (Civil) with effect from 02.07.2003, the date on which he acquired the test qualification.

Provisional promotions were made in the Board to the category of Assistant Executive Engineer (Civil) under Rule 31 (a) (i) of Part I of the Kerala State and Subordinate Service Rules (KS&SSR). Though the petitioner was fully qualified as per the Special Rules for being promoted to the post of Assistant Executive Engineer (Civil), no steps were taken to promote him. The petitioner, therefore, by Ext. P1 representation, approached the Chief Engineer (HRM), the 3rd respondent, claiming promotion to the post of Assistant Executive Engineer (Civil) with effect from 02.07.2003. However, Ext.P1 was rejected by the 3rd respondent vide Ext.P2 order stating that the promotion to the cadre of Assistant Executive Engineer (Civil) is being ordered in the ratio of 3:1 among qualified graduates and qualified Diploma holders and the sanctioned strength of Assistant Executive Engineer (Civil) in the Board is 127 and 78 graduates are working as surplus in the said cadre and there exists no vacancy in the cadre of Assistant Executive Engineer (Civil) in the graduate quota.

Challenging Ext.P2, the petitioner approached this Court by filing W.P.(C) No.15098 of 2005. It was contended that there is no basis for the stand of the 3rd respondent that there are no vacancies to promote the petitioner and the vacancies have been filled up by unqualified persons and the unqualified hands shall be reverted.

The said writ petition was disposed of by this Court vide Ext.P5 judgment dated 30.01.2009 observing that the cadre strength being 164, the quota set apart for Graduate Engineers will come to 123 and for Diploma holders, the quota set apart will be 41, and therefore 123 posts have to be filled up by qualified Graduate Engineers in the feeder category with reference to the date of occurrence of vacancies. It was also observed that, if there is any exemption available from passing any test, the same may be relevant while preparing the list of qualified hands according to seniority and that, out of the 164 posts, 123 shall be filled up by qualified Graduate Engineers in accordance with their seniority. This Court also ordered that if vacancies in the quota of the diploma holders remain unfilled for want of qualified hands, the said vacancies can also be filled up provisionally, subject to exigencies of service. Accordingly, this Court directed the Board and the Chief Engineer, HRM to fill up 123 posts of Assistant Executive Engineer (Civil) on regular basis by promoting or by retaining those who were already promoted from among Assistant Engineers (Civil). It was observed that the promotion or retention in the cadre of Assistant Executive Engineer should be strictly in accordance with the seniority of qualified hands and also having regard to the date of occurrence of vacancies. This Court further directed that the said exercise shall be completed within three months from the date of receipt of a copy of the judgment.

Pursuant   to   Ext.P5   judgment,   the   3rd respondent passed Ext.P8 order dated 10.11.2009, the relevant portion whereof is extracted hereunder:-

“In view of the judgment and the relevant rules, the matter was examined in detail and it is noted that as per G.O (MS) No.150/65 dated 17.05.1965 applicable to the employees in the General Branch of Engineering Service, the qualifications prescribed for promotions to the post of Assistant Engineer (Subsequently re-designated as Assistant Executive Engineer) and above are pass in

(i) Account Test and

(ii) Kerala PWD Test

In the case of Electrical Branch, the pass in the three papers of the Department Test for the Executive Staff of KSE Board is mandatory as per the Engineering Service Rules. In view of the above fact, the additional requirement of pass in Electricity (Supply) Act, in the case of Civil Branch of the KSE Board, was not forwarded to Government by KSE Board or accepted by the Government. KSE Board is not authorized to change to the promotion criteria accepted by the Government. Hence it is decided that the criteria accepted by the Government will be followed and continue to be followed for promotion in the Civil Wing of the KSE Board. The quota for the respective categories shall be filled up accordingly. This order is issued in compliance of the Judgment.”

(emphasis supplied)

The 3rd respondent has thus rejected the claim of the petitioner stating that the additional requirement of pass in Electricity (Supply) Act in the case of Civil branch of Board was not forwarded to the Government or accepted by the Government and therefore the Board is not authorised to change the promotion criteria accepted by the Government.

Ext.P8 order is impugned in this writ petition. The contention of the petitioner is that Ext.P8 order is passed by the 3rd respondent not in terms of the directions contained in Ext.P5 judgment and only for protecting the interest of those unqualified persons who have not passed the departmental test for Executive staff of Board. The petitioner relies on Ext.P4 affidavit filed by the Secretary of the Board in W.P.(C) No.15098 of 2005 to contend that the stand of the Board in the affidavit is that pass in Electricity (Supply) Act is a mandatory prerequisite for declaration of probation in the post of Assistant Engineer (Civil) and promotion to the post of Assistant Executive Engineer (Civil) and that the stand of the 3rd respondent in Ext.P8 is totally contradictory to the stand taken by the Board in the counter affidavit in the earlier rounds of litigation. In Ext. P4 affidavit, referring to the Note to Rule 4(d) of the Kerala Engineering Service Rules, 1959, it is stated that only those Assistant Engineers who have passed the Account Test (Lower) and the Kerala PWD Test shall be eligible for appointment as Assistant Executive Engineers. Referring to Board Order No. EB.II-15145/70 dated 4.8.1971 it is stated that Assistant Engineers should pass all three papers of the Departmental Test for Executive Staff and Account Test for the purpose of earning their increment and for promotion.

The petitioner also refers to the notification of the Kerala Public Service Commission and his appointment order to contend that pass in Electricity (Supply) Act is a mandatory prerequisite for declaration of satisfactory completion of probation in the post of Assistant Engineer (Civil). The petitioner contends that he is entitled for promotion to the post of Assistant Executive Engineer (Civil) in terms of the qualification required for the said post viz; pass in Account Test (Lower) and Departmental test for Executive Staff of KSEB, with effect from 02.07.2003, the date of acquiring the test qualification. Accordingly, the petitioner has sought for the following reliefs in the writ petition:-

“a) Call for the records leading to the issuance of Exhibit P8 and issue a Writ of Certiorari quashing the same.

b) To issue a writ of mandamus or any other appropriate writ order or direction declaring that a pass in Electricity (Supply) Act is a mandatory pre – requisite for passing the Departmental Test for the Executive Staff of Kerala State Electricity Board.

c) To issue a writ of mandamus or any other appropriate writ order or direction declaring that a pass in the departmental test for the executive staff of KSE Board is a mandatory pre-requisite for declaration of probation in the entry cadre, earning increments and for further promotions from the entry cadre.

d) To issue a writ of mandamus or any other appropriate writ order or direction directing the respondents to implement the judgment dated 30th January 2009 in W.P.(c) 15098 of 2005 untrammeled by Exhibit P8.”

A counter affidavit dated 15.12.2022 has been filed on behalf of the Board and the Chief Engineer (HRM) wherein it is stated that the appointment to the cadre of Assistant Executive Engineer (Civil) is governed by the Kerala Engineering Service Rules and as per the said Rules, the qualifications prescribed for promotion to the post of Assistant Executive Engineer (Civil) are pass in (1) Accounts Test (Lower) and (2) Kerala PWD Test conducted by the Kerala Public Service Commission and that as per the Board Order dated 04.08.1971, an Assistant Engineer (Civil) should also qualify the test in Electricity Supply Act in addition to the same. It is further stated that, in view of Ext. P5 judgment, the matter was examined by the Board with reference to the relevant Rules and it was noted that as per G.O.(MS) No.150/65 dated 17.05.1965 applicable to the employees in the General Branch of Engineering Service, the qualifications prescribed for promotion to the post of Assistant Engineer (Civil) and above are pass in (1) Accounts Test (Lower) and (2) Kerala PWD Test. It is stated that the additional qualification of pass in Electricity Supply Act in civil branch of Board has not been taken up with the Government for approval and hence the Board felt it would not be appropriate to insist for pass in Electricity Supply Act prescribed in the B.O. dated 04.08.1971 and therefore the Board decided that the criteria accepted by the Government will be followed and continued to be followed for promotion in the civil wing of the Board.

During the pendency of this writ petition, certain persons who were working as Assistant Executive Engineer (Civil) and facing threat of reversion for not having passed the departmental test in Electricity (Supply) Act filed W.P. (c) No. 29563 of 2009 and this Court, relying on Ext. P8 Board Order dated 10.11.2009, closed the writ petition by judgment dated 20.11.2009 observing that, from the Board Order dated 10.11.2009 it is clear that the Board will not be insisting that the Engineers of the civil wing should pass test in the Electricity Supply Act, 1948 and there is no cause of action for the petitioners to apprehend that they will be reverted for want of pass in the test. In the light of the judgment in W.P. (c) No. 29563 of 2009, the petitioner has impleaded the petitioners therein as additional respondents 8 to 24 in this writ petition and on behalf of many of them, a counter affidavit dated 16.08.2010 has been placed on record. It is contended by the additional respondents that, issues relating to service conditions of Assistant Engineers and further promotions are to be governed by the Kerala Engineering Service Rules as it stood on the date of adoption by the Board viz; 30.03.1962, when no departmental tests have been prescribed for promotion to the post of Assistant Executive Engineer and the subsequent amendment to the Rules prescribing pass in departmental tests has not been adopted by the Board in terms of Section 79 (c) of the Kerala Electricity Supply Act by any gazette publication. With regard to the contention of the petitioner that Ext.P8 Board order has been issued to overreach the decision of this Court in Ext.P5 judgment, the additional respondents state that Ext.P5 judgment does not lay down any dictum as to the qualification required for effecting promotion. With regard to the contention of the petitioner placing reliance on Ext.P4 counter affidavit of the Secretary of the Board in the previous round of litigation, the additional respondents state that the stand taken in an earlier counter affidavit or the information furnished by an officer under the Right to Information Act cannot dilute the parliamentary force of an enactment requiring the Board to frame conditions of service of its employees in terms of Section 79 (c) of the Electricity Supply Act, 1948. With regard to 1971 Board Order, it is contended that the same cannot be construed as an amendment to the Rules adopted in 1962.

The petitioner has filed reply affidavits to the aforesaid counter affidavits of the respondents.

Heard Sri.Santhosh Mathew, the learned counsel for the petitioner, Sri.K.S. Anil, the learned Standing Counsel for the Board and Sri.N.Krishna Prasad, the learned counsel for the additional respondents.

Section 79 (c) of the Electricity Supply Act, 1948 provides that, the Board may, by notification in the official gazette, make Regulations not inconsistent with the Act and Rules made thereunder to provide inter alia for the salaries, allowances and other conditions of service of its officers and employees. In exercise of the said powers, the Board vide B.O. No. A.1/588/60 dated 30.3.1962 adopted the Kerala Engineering Service Rules, 1959 (G.O. (Ms) No.372 Public (Rules) Department, dated 16.03.1959) to govern the qualification and method of appointment/promotion to the cadre of Assistant Executive Engineer (Civil) and Executive Engineer (Civil) in the Electrical and Civil wings of the Board w.e.f 01.04.1962. As per Rule 3 (d) of the Kerala Engineering Service Rules, 1959, a Junior Engineer (re-designated as Assistant Engineer) shall not be eligible for appointment as Assistant Engineer (re-designated as Assistant Executive Engineer) unless he has rendered service under the Government for a total period of not less than 3 years and possess the qualification mentioned in item (i) or in sub item (a) of Section A in item (ii) of the Annexure to the Rules. The qualifications mentioned in the Annexure are: Degree in Engineering; B.Sc in Engineering (Civil or Mechanical) of Kerala University, B.E. Degree (Civil or Mechanical) of the Madras University or any other qualification recognized as equivalent thereto, diploma in Civil Engineering or Mechanical Engineering from College of Engineering Guindy or AMIE in Civil Engineering or Mechanical Engineering or any other Diploma recognized as equivalent thereto or he has rendered service under the Government for a total period of not less than 7 years and possess any diploma specified in section B in item (ii) of the Annexure (Diploma in Engineering by specified institutions). Thus, the Kerala Engineering Service Rules, 1959 adopted by the Board vide B.O. No. A.1/588/60 dated 30.3.1962 did not contain any requirement of test qualification for promotion as Assistant Executive Engineer (Civil). Later, the Government framed the Kerala Engineering Service (General Branch) Rules vide G.O. (Ms) No. 150/65/PW dated 17.05.1965, (which Rules were called the Kerala Engineering Service Rules, till substituted in 1994 with the words 'Kerala Engineering Service (Civil and General Branch) Rules) with same qualifications but with slight change in the nomenclature. As per G.O.(Ms) No.267/66/PW dated 09.12.1966, a Note was inserted to Rule 4(d) (corresponding to Rule 3 (d) of Kerala Engineering Service Rules, 1959) providing that only those Assistant Engineers who have passed the Account Test (Lower) and the Kerala PWD Test shall be eligible for appointment as Assistant Executive Engineers. A further amendment was made to the aforesaid Note vide G.O (P) No.152/77/PW dated 17.09.1977 by inserting the words 'the Kerala PWD Manual Test', thereby requiring that only those Assistant Engineers who have passed the Account Test (Lower), the Kerala PWD Manual Test and the Kerala PWD Test shall be eligible for appointment as Assistant Executive Engineers.

While the Board vide B.O. No. A.1/588/60, dated 30.3.1962 adopted the Kerala Engineering Service Rules, 1959, as it stood then, to govern the qualification and method of appointment/promotion to the cadre of Assistant Executive Engineer (Civil) and Executive Engineer (Civil) in the Electrical and Civil wings of the Board, there is nothing on record to show that the amendments to Kerala Engineering Service Rules, 1959 made vide G.O.(Ms) No.267/PW dated 09.12.1966 and G.O (P) No.152/77/PW dated 17.09.1977 requiring that only those Assistant Engineers who have passed the Account Test (Lower), the Kerala PWD Manual Test and the Kerala PWD Test shall be eligible for appointment as Assistant Executive Engineers, has been adopted by the Board for its employees. Even according to the petitioner, G.O. (Ms) No. 150/65/PW dated 17.05.1965 has not been adopted by the Board and the said Government Order has no application whatsoever to the Board employees. The Kerala Engineering Service Rules, as it stood at the time of adoption vide Board Order No. A.1/588/60 dated 30.3.1962, did not contain any requirement of test qualification for promotion as Assistant Executive Engineer (Civil). Even G.O.(Ms) No.267/66/PW dated 09.12.1966 provided that only those Assistant Engineers who have passed the Account Test (Lower) and the Kerala PWD Test shall be eligible for appointment as Assistant Executive Engineers. There is no stipulation in the Rules as amended by G.O.(Ms) No.267/66/PW dated 09.12.1966 that the Assistant Engineers shall pass all the three papers of the Departmental Test for Executive Staff for promotion to the post of Assistant Executive Engineer. Pass in Electricity (Supply) Act is not insisted in the Rules as amended by G.O.(Ms) No.267/66/PW dated 09.12.1966.

Since it is evident that the Kerala Engineering Service Rules or the Government orders do not require pass in all the three papers of the Departmental Test for Executive Staff for promotion to the post of Assistant Executive Engineer, this Court has to examine whether any Board Order/Regulation envisages such requirement. B. O No. EB.II-15145/70 dated 4.8.1971 relied on by the petitioner is extracted hereunder:-

“ORDER

As per the existing Rules, for purpose of confirmation in the Lower Division, a Clerk should pass the paper on Departmental Manual of Office Procedure and the paper on Electricity Supply Act, Chapters I to IV and VI, Store Accounts, Tariffs and Revenue Account Rules and for promotion to Upper Division, a Clerk should pass all the four papers of the Account Test and all the four papers of the Departmental test for ministerial staff. Similarly in the case of Junior Engineers they should pass all the three papers of the 'Departmental Test for Executive staff' and Account Test for purpose of earning their increment.

As per the standing orders applicable to workmen in the category of Executive Employees, a workman shall be eligible for increment if he is on a time scale of pay/wages, at the end of the prescribed period unless the increment is withheld or postponed as a matter of punishment.

The Board having examined the question further, hereby orders that neither the increment nor confirmation be postponed in the case of both the Executive and Ministerial Employees. The promotion to the next higher grade i.e. U.D. Clerk in the case of Ministerial Employees and Assistant Engineer in the case of Junior Engineers will be allowed only if the workmen complete all the prescribed tests.”

(emphasis supplied)

The Board order states that, as per the 'existing Rules', Junior Engineer (re-designated as Assistant Engineer) should pass all the three papers of the Departmental Test for Executive Staff and Account Test for the purpose of earning their increment and for promotion, and the promotion to the higher grade of Assistant Engineer (re-designated as Assistant Executive Engineer) will be allowed only if the workmen complete all the prescribed tests. The 'Rules existing' at the time of Board Order No. EB.II-15145/70 dated 04.8.1971 was the Kerala Engineering Service Rules, as amended by G.O.(Ms) No.267/66/PW dated 09.12.1966. The Rules existing at the time of Board Order No.EB.II-15145/70 dated 04.8.1971 did not provide for passing any departmental test in Electricity Supply Act for promotion to the post of Assistant Executive Engineer. The Board Order presupposes the existence of a Rule requiring passing all the three papers of the Departmental Test for Executive Staff. The Rules did not provide that the Assistant Engineers should pass all the three papers of the Departmental Test for Executive Staff. The Board Order No. EB.II-15145/70 dated 4.8.1971 cannot be construed to be a Regulation made under Section 79 (c) of the Electricity Supply Act, 1948 laying down the qualification for promotion. It is neither an order adopting any Rules or Government orders nor a Regulation made by the Board under Section 79 (c) of the Electricity Supply Act, 1948. The requirement of publication of notification in the Gazette under Section 79 was inserted only in 1983. The 1971 Board Order, whether gazetted or not, cannot be construed as a notification in terms of Section 79 (c) of the Electricity Supply Act. The 1971 Board Order cannot be pressed into service for the purpose of promotion to the post of Assistant Executive Engineer.

In Ext.P8, the Board has stated that it will continue to follow the criteria followed by the Government for promotion in the civil wing of the Board and the requirement of test qualification in the Electricity Supply Act was not accepted by the Government. Ext. P8 Board order was taken note of by this Court in the judgment dated 20.11.2009 in W.P.(C) No.29563 of 2009 filed by the additional respondents herein who apprehended reversion on the basis of not passing the departmental test in Electricity Supply Act. This Court closed the said writ petition observing that, from the Board Order dated 10.11.2009 (Ext. P8) it is clear that the Board will not be insisting that the Engineers of the civil wing should pass test in the Electricity Supply Act, 1948 and there is no cause of action for the petitioners to apprehend that they will be reverted for want of pass in the test.

It is to be noted that, in Ext. P5 judgment, this Court held that the quota set apart for Graduate Engineers will come to 123 and therefore, 123 posts have to be filled up by qualified Graduate Engineers in the feeder category with reference to the date of occurrence of vacancies. This Court had not considered the question of qualification for promotion to the post of Assistant Executive Engineer in the Board or, as to whether passing the Departmental Test in Electricity Supply Act is a prerequisite for promotion.

In the light of the discussion herein above, this Court holds that there is no merit in the writ petition and the challenge against Ext.P8 fails. The petitioner is not entitled for any direction or declaration as prayed for in the writ petition.

The writ petition is dismissed. There will be no order as to costs.