Nazaruddin A. vs Kerala State Electricity Board and Others

Antony Dominic, J.—The petitioner is a Sub Engineer in the Kerala State Electricity Board, aspiring promotion to the post of Assistant Engineer. Ext.P8 is the list of eligible Sub Engineers prepared for effecting temporary promotions to the post of Assistant Engineers. In Ext.P8, the petitioner''s name has been included at Serial No. 31. Although several persons, who are included in Ext.P8 list, were temporarily promoted as per Rule 31 of the KS & SSR, the petitioner''s name was not considered for the reason that disciplinary proceedings were pending against him.

Ext.P2 is the order placing the petitioner under suspension. However, the petitioner submitted that by Ext.P7 order he was reinstated. On reinstatement, the petitioner contended that, his ineligibility, which justified his exclusion from temporary promotion, ceased to exist and therefore he should be given the benefit of temporary promotion. It is with this grievance, this writ petition has been filed.

The learned Counsel for the petitioner has relied on Exts.P14, P15 & P16 judgments of this Court, where, according to him, identical claims raised by employees of the KSEB itself have been considered by this Court and the contentions were upheld.

However, learned standing counsel for the Board contended that mere inclusion in the select list does not confer any right on a person for promotion. He also relied on the Apex Court judgment in C.O. Arumugam and Ors. v. State of Tamil Nadu and Ors. 1999 Supp (2) SCC 199 to contend for the position that the appointing authority can justifiably exclude a person from promotion so long as disciplinary proceedings are pending against him. It is contended that charge sheet has been issued to the petitioner and so long as proceedings are pending against him, he cannot demand that he should be promoted either permanently or temporarily.

As already stated, promotions, which are effected from Ext.P8 list are temporary and in terms of Rule 31 of the KS & SSR. Once a select list is prepared, except those who are under suspension, rest of the persons included in the list are normally eligible for temporary promotion. It has been so held by this Court in the judgments relied on by the learned Counsel for the petitioner. As far as the petitioner is concerned, with Ext.P7 order reinstating the petitioner, the ineligibility due to suspension has ceased to exist. No other justifiable reason is stated to exclude the petitioner. If that be so, the petitioner is entitled to claim the benefit of temporary promotion, by virtue of his inclusion in Ext.P8 list. True, in the Apex Court judgment relied on by the learned Standing Counsel for the Board, it has been held that so long as disciplinary proceedings are pending, the appointing authority is entitled to exclude the person from promotion.

However, insofar as the petitioner is concerned, his entitlement will depend to Rule 31. Rule 31 only excludes, those who are under suspension and those excluded for justifiable reasons. In my view, his case is covered by Exts.P14, P15 & P16 judgments and the principles laid down by the Apex Court in the judgment relied on by the learned Standing Counsel for the Board are not of any relevance in this case.

In view of the above, I dispose of the writ petition directing the respondents to effect temporary promotion to the petitioner on the basis of his inclusion in Ext.P8 select list to the post of Assistant Engineer. This shall be done as expeditiously as possible, at any rate, within four weeks of production of a copy of this judgment.

This writ petition is disposed of as above.