R HARIHARAN Vs. K BALACHANDRAN NAIR

JUDGEMENT

(1.) The appellants herein, are Engineers in the service of Kerala State Electricity Board (hereinafter referred to as the "Board") and have preferred these appeals against the judgment rendered by the Division Bench of the Kerala High Court whereby the writ petition and the writ appeal filed by the respondents were allowed and the Board was directed to re-fix the seniority in the light of legal position indicated therein. As a result of the said judgment, the appellants contend that they would be treated as junior to the respondents.

(2.) The Board was established under Section 5 of the Electricity (Supply) Act, 1949 on 7th March, 1957. Prior to 1-10-1966, 7 employees were appointed by the Board on various categories of posts like Overseer, Tracer etc. The Kerala Public Service Commission (Additional Functions) Act, 1963 (hereinafter referred to as the "Act") came into force with effect from 1-10-1966. The Act provided for exercise of certain additional functions by the Kerala Public Service Commission in respect of appointments of officers and servants of the Board and their conditions of service. During the period 1972 to 1974 the appellants four in number, were recruited through the Public Service Commission on different dates to different categories of posts like Overseer, Tracer etc. On 18-4-1975, the Board issued an Order that out of 50 per cent quota of direct recruits in the cadre of Asstt. Engineer 40 per cent were to be appointed from open market and remaining 10 per cent were to be recruited from qualified Engineering Graduates in the employment of the Board. The case of the respondents is that the recruitment of these two categories of direct recruts were to be made with the consultation of the Public Service Commission. During the period 1976 to 1980, the Public Service Commission did not take any step for recruitment to fill up the 10 per cent quota set apart for the in-service Engineering Graduates who were in employment with the Board. Since the appellants and others totalling eleven in numbers, were Engineering Graduates in the service of the Board the Board on different dates beginning from 26-12-1976 to 1-8-1979 appointed them to the posts of Assistant Engineer (Civil) against 10 per cent quota reserved for the in-service Engineering Graduates in the Board. The letter of appointment indicated that appointments of the appellants were provisional during the period of probation and in case they pass two Departmental tests viz., 'Departmental test for Executive Staff and 'Account Test Lower' and further on satisfactory completion of the probationary period, their services would be regularised.

(3.) On successful completion of the probationary period, the Board by separate orders regularised the appointments of all the 11 Assistant Engineers including the appellants from the date of their joining duties as Assistant Engineers. The writ petitioners who are the respondents herein were recruited in the cadre of Assistant Engineers (Civil) through the Public Service Commission and had joined their duties on 21-10-1981. Although the services of 11 employees including the appellants were regularised by the Board, yet the Public Service Commission declined to give its concurrence to the regularisation of the services with effect from the date of their joining duties. There being difference of opinion between the Board and the Public Service commission on the question of date of regularisation of services of the appellants, the Board referred the matter to the State Government under sub-section (2) of Section 3 of the Act. The State Government on receipt of the reference from the Board again referred the matter to the Public Service Commission. Thereafter, the State Government after considering the matter by an order dated 12-5-82 overruled the advice of the Public Service Commission and approved the regularisation of the services of the appellants with direction that inter se seniority of the Assistant Engineers whose services have been regularised shall be determined from the date on which each Assistant Engineer acquired the necessary qualification. Consequent upon the order of the State Govt. dated 12-5-1982 a graduation list of Assistant Engineers was prepared wherein the appellants were shown above to the respondents herein. After a lapse of 5 years the respondents herein who are direct recruits and joined duties on 21-10-1981, filed a writ petition O.P. No. 7730 of 1987 for quashing the Govt. Order dated 12-5-1982 and the consequent graduation list Ext. 12 to the writ petition. In the said writ petition 10 Assistant Engineers including the appellants were arrayed as respondents 15 to 24. A learned single Judge of the Kerala High Court dismissed the writ petition on the ground that the challenge to the seniority list was highly belated and further there was no violation of quota of 10 per cent earmarked for in service Engineering Graduates. Against the said judgment the respondents herein filed a Writ Appeal before a Division Bench of the High Court. During the pendency of the Writ Appeal two other Assistant Engineers (Civil) who were also directly recruited and had joined their duties on 21-10-1981 filed another Writ Petition No. 12363/93 seeking quashing of the Govt. Order dated 12-5-1982 and the graduation list Ext. P. 12. The writ appeal and the writ petition filed by the writ petitioners were consolidated and heard together. During the pendency of the writ appeal and the writ petition the appellants were promoted to the posts of Executive Engineers. The Division Bench after hearing the matter was of the view that the date of the order of the first appointment of the appellants would be the date when their services were regularised i.e. 12-5-1982 and, therefore, the respondents who joined their duty on 21-10-1981 have to be treated senior to the appellants. The High Court allowed the writ appeal and the writ petition and directed the Board to re-fix the seniority in the light of what was stated in the judgment.