Supreme Court of India
KERALA STATE ELECTRICITY BOARDversusMR. SARATCHANDRAN P. & ANR.
- Citation
- 2008 INSC 1060
- Decided
- 18 September 2008
- Disposal
- Appeal(s) allowed
Holding
Article 14 does not entitle the senior employee to retrospective promotion or monetary benefits when the juniors' promotions were illegal; the appeal is allowed.
Summary
The Kerala State Electricity Board (KSEB) maintained two separate services, the General Establishment and the Board Secretariat Service. Two employees of the Secretariat Service, S.G. Rajappan and L. Radhadevi, received out‑of‑turn promotions that were later declared illegal. The senior employee in the General Establishment, Saratchandran, claimed that, being senior to them, he should be granted the same promotions with retrospective effect under Article 14 of the Constitution. The High Court allowed his claim, ordering retrospective promotion and related salary benefits. KSEB appealed, arguing that the senior employee could not rely on the illegality of the juniors' promotions to obtain a benefit. The Supreme Court held that Article 14 is a positive concept and cannot be invoked merely because an employer’s illegal act benefitted a junior; seniority does not automatically confer retrospective promotion, and no equity can be claimed on the basis of the illegality. Consequently, the High Court judgment was set aside and the appeal was allowed.
Issues considered
- Whether Article 14 of the Constitution can be invoked to grant a senior employee promotion with retrospective effect when junior employees received illegal out‑of‑turn promotions.
- Whether the amendment to Regulation 5(c) of the KSEB Regulations, 1981, is valid and its effect on inter‑service seniority.
- Whether a senior employee is entitled to monetary benefits or arrears of salary due to the illegal promotions of his juniors.
Legislation cited
- Constitution of Indias. Art.14
- Electricity (Supply) Act, 1948s. 79-C
Subjects
Article 14EqualitySeniorityPromotionRetrospective promotionService lawIllegal promotionInter‑service seniorityKerala State Electricity Board
Judgment
(2008] 13 S.C.R: 688
A KERALA STATE ELECTRICITY BOARD
v.
MR. SARATCHANDRAN P. & ANR.
(Civil Appeal No. 5813 of 2998)
SEPTEMBER 18, 2008
B
[S. B. SINHA AND CYRIAC JOSEPH, JJ]
Constitution of India, 1950:
Article 14 - HELD: Equality under Article 14 is a positive
c concept- Its provisions cannot be invoked only because some
illegality has been committed by an employer as a result
whereof some employee has obtained benefit - Constitutional
scheme of equality clause would apply only in a case where
the parties are similarly situated - No equity can be claimed
D on the basis of an illegality - Service Law.
Kera/a State Electricity Board (Integration of Board Sec-
retariat establishment and general Establishment) Regula-
tions, 1981:
E Regulation 5(c) - Seniority - Employee in the General
Establishment claiming seniority and promotion from the date
two of his juniors were promoted in Secretariat Establishment -
HELD: It is now a well settled principle of law that only because
by mason of 'fortuitous' circumstances an employee who is jun-
F ior to another obtains some benefit to which he is ultimately not t
found to be entitled, that by itself may not be a ground to confer
the same benefit upon senior employee - A separate service
known as 'Board Secretariat Service' was formed - In imple-
mentation of judgment of the Court, although, claimant would
rank as senior to the employees who joined Board Secretariat
G
Service, the same would not mean that he would be entitled to
promotion with retrospective effect - The employees junior to
the claimant obtained out of turn promotion which ultimately ..,
was found to be illegal - It is not the case of claimant that he
H 688
KERALA STATE ELECTRICITY BOARD v. MR. 689
SARATCHANDRAN P. & ANR.
was unjustly denied promotion - It is also not his case that he · A
had suffered any pecuniary loss or any other prejudice - The
claimant was not entitled to promotion with retrospective effect.
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 5813
of 2008
B
From the final Judgment and Order dated 14.12.2005 of
the High Court of Kera la at Ernakulam in W.A. No. 1622 of 2005
M.T. George for the Appellant.
K. Rajeev for the Respondents. c
The following Order of the Court was delivered
Leave granted.
1. The Kerala State Electricity Board constituted and in-
corporated under the Electricity(Supply) Act, 1948 is before us D
aggrieved by and dissatisfied with a judgment and order dated
14.12.2005 passed by a Division Bench of the Kerala High
Court in Writ Appeal No. 1622/2005 modifying the judgment
and order dated 2.3.2005 passed by a learned Single Judge of
the said Court in O.P. No.26092/1999 allowing the petition filed E
by the respondent No.1 herein.
2. Kerala State Electricity Board since its inception in the
year 1957 was having two categories of services; (i) Ministerial
Service and (ii) Executive Service.
F
3. On or about 1.4.1964, however, a separate services
known as 'Board Secretariat Service' was constituted in terms
whereof those employees who had been working were given a
right of option with a lien to the parent wing to opt therefor. Indis-
putably, whereas the respon·dent No.1 was appointed as a Lower ·G
Division Clerk on 11.5.1962, L. Radhadevi was appointed on
28.1.1963 and S. G.Rajappan was appointed on 11.3.1968. It
is not in controversy that whereas the said L.Radhadevi , S.G.
Rajjappan opted for the Board Secretariat services, the first
respondent continued to work in the general establishment.
H
690 SUPREME COURT REPORTS [2008] 13 S.C.R.
A 4. It is also not in dispute that by reason of their postings in
the Board Secretariat Service the said S.G.Rajappan and
L.Radhadevi were promoted as Senior Superintendent on or
about 31. 7.1979 and 17 .3.1977 respectively, whereas the first
respondent was promoted to the post of Junior Superintendent
s on 9.11.1979; in the post of Superintendent on 1.8.1986 and on
the post of Senior Superintendent on 14.7.1987.
5. It is also not in dispute that in the Board Secretariat
Service, there was no post of Senior Supreintendent. Whereas
S.G.Rajappan was promoted to the post of Assistant Accounts
C Officer on 21.1.1984 and L. Radhadevi was promoted to the
post of Assistant Accounts Officer on 3.3.1983, the first respon-
dent was promoted as Assistant Accounts Officer on 23.12.1992
only. We may also notice that S.G.Rajappan was appointed to
the post of Accounts Officer on 1.9.1990 and L.Radhadevi was
D appointed to the said post on 1.9.1990,whereasS.G.Rajappan
was appointed as Senior Accounts Officer on 4.8.1993, L.
Radhadevi was appointed in the said post on 17 .12.1992 on
the other hand the first respondent was promoted to the post of
Accounts Officer on 19.1.1995 and superannuated from ser-
E vice on 31.5.1996, L.Radhadevi and S.G.Rajappan superan-
nuated with effect from 31.7.1993 and 31.5.1996 respectively.
6. Indisputably, the employees of the Board were governed
by the Rules known as Kerala State Electrcity Board(integration
of Board Secretariat Establishment and General Establishment) t
F Regulations, 1981 framed under Section 79-C of the Electricity
(Supply) Act, 1948. Regulation 5(c) as it stood in the year 1981
reads thus:
"5( c) Subject of clause(f) relative seniority of persons drawn
from the Secretariat Establishment and General
G
Establishment including Accounts Wing and holding
equated posts shall be determined on the basis of their
length of service in the cadre/category concerned at the
time of integration."
H 7. However, the same caused heart burning amongst a
KERALA STATE ELECTRICITY BOARD v. MR .. 691
SARATCHANDRAN P. & ANR.
section of the employees. Representations were filed in regard A
thereto and ultimately the Board took a decision to amend the
aforesaid clause(c). On or about 7.11.1985, an amendment was
_. carri.ed into effect as a result whereof the said amended regu-
lation read as under:
" The relative seniority of persons drawn from the B
Secretariat establishment and the General Establishment
including the Accounts wing shall be determined based
on their ranking in the Advice list of the Kerela Public
Service Commission or the Board as the case may be at
the time of initial recruitment by the Kerala Public Service c
.
l Commission or the Board to the respective establishment
under the Board subject to the application of rules
regarding obligatory departmental tests".
"' 8. Validity of the said amendment was questioned before
the High Court of Kerala. It was held to be invalid.
D
9. The matter, however, was carried to this Court and by a
judgment dated 23.7.1996 in C.A.No.3967/1990, this Court al-
lowed fhe appeal preferred by the Kerala State Electricity Board
holding as under: E
"Shri lyer's main concern was that the aforesaid principle
' of inter-se seniority, if sustained, would result in reversion
'
of the persons who had got accelerated promotion in the
t
Secretariat Service. This was illustrated by the learned
counsel by drawing our attention to equation of posts as F
finding place at page 66 of the paper book of
C.A.No.3974/90, wherein the post of Assistant Secretary
of the Secretariat Establishment has been shown as equal
to Assistant Accounts Officers- the next post below whom
in the General Establishment being of Senior G
Superintendent. Learned counsel contended that the
'f
aforesaid principle would require reversion of the Assistant
Secretary of the secretariat service to Senior ·
Superintendent of the General Establishment, as the latter
may be senior to the former if the ranking at the time of H
692 SUPREME COURT REPORTS [2008] 13 S.C.FL
A initial recruitment alone was to be taken into consideration.
According to us, however, this is not the correct reading
of the principle inasmuch as that only speaks about fixation
of relative seniority, and does not visualize any reduction
in rank or reversion. It may be that the following of 1985
B principle would make the Assistant Secretary of the
illustration junior to the Senior Superintendent, but that
would not require the Assistant Secretary to be demoted
to the post of Senior Superintendent."
10. It is again not in dispute that a review petition was filed
C thereagainst which was dismissed by an order dated 3.2.1998.
In the meanwhile, the Board sought to implement the judgment
of this Court on or about 7.6.1997 by reverting eight officers.
11. The contention of the Board is that had the said
S.G.Rajappan and L.Radhadevi not retired on 31.5.1996 and
0
31.7.1993 respectively, they would have also met the same fate
b1,1t no action could be taken in this behalf.
12. The seniority of the first respondent vis-a-vis the oth-
ers in terms of the this Court's judgment dated 23. 7.1996 was
E revised by an order dated 26.10.1998. In the revised seniority
list three separate lists were prepared. First Respondent's name
found place at Serial No.131 of List-B thereof.
13. He filed a representation before the Chairman, Kerala
State Electricity Board praying for his promotion 'Nith retrospec- t
F tive effect,inter-alia , contending that as S.G. Rajappan and L.
Radhadevi had been promoted before him, tie should have been
promoted to the post of Senior Superintendent on the date on
which his juniors were promoted stating:
" Knowingly or unknowingly the Board has erred in issuing
G
the B.O. dated 26.10.1998 ref. 3rd cit.:!d. The Board has
not either understood the full implication of the decision in
C.A.No.3434/1984( Om Prakash Sharma Vs. Union of
India, 1985 (Supp) SCC, 218) the natura ~nd aspects oi
which case the honourable Supreme Cour: of India found
H '
-1 KERALA STATE ELECTRICITY BOARD v. MR. 693
SARATCHANDRAN P. & ANR.
analogous to that of my cas'eH C .A.s 3974 & 3968/1990) A
or, is trying to hoodwing me.
My case is that, (as has been brought to the Board's notice
many times prior to this through my representations - ref.4)
I being senior to Mr.S.G. Rajappan and Smt. L. Radhadevi,
should get all promotions which were given to them on the B
same dates (at least on which they were promoted (to the
respective higher ranks).
To conclude, I request that all promotions to me right from
the rank of Senior Assistant to Senior Accounts Officer, c
be ordered with retrospective effect from such dates as
when Smt. L. Radhadevi and/or Mr.S .G. Rajappan was
promoted ( to each rank), my pay and allowances and
pension revised and all arrears right from 14.1 .1981 be
disbursed within one mo~th from the date of receipt of
D
this."
15. The said representation of the first respondent was
rejected by appellant by an order ,dated 8.3.1999 stating that
the promotion of said S.G.Rajappan and L.Radhadevi being
illegal as they were promoted out of turn, he could not be given E
the same benefit.
16. First Respondent filed a writ petition aggrieved by and
dissatisfied therewith which was allowed by the learned Single
Judge holding :
F
" 8 . In view of the above proposition of law and the
interpretation given to Regulation 5 of the Regulations,
the petitioner staked his claim that he be given his due
benefits by treating him as senior to LRadhadevi and
S.G. Rajappan and that his pay and pension have to be
G
mauled accordingly after giving him the promotions which
were given to them on account of the application of the
substituted Regulation No.5.
9 . The impact of the substituted Regulation No.5 is that
the crucial date of integration shall be 14.1.1981 and that H
694 SUPREME COURT REPORTS [2008] 13 S.C.R.
A the relative seniority of persons shall be determined based
on their ranking in th!=! advice list of the public service
commission or the Board, at the time of initial recruitment
by the Public Service commission or the Board, as the
case may be, subject to the application of rules regarding
s obligatory departmental tests.
10. It is not under challenge that the petitioner is the
admitted senior of S.G. Rajappan and L.Radhadevi
referred to above.
c 11. However, the impugned Ext.P 7 has been issued by
the Secretary of the 2nd respondent Board on the premise
that the petitioner had retired at a point of time when the
judgment delivered by this Court in W.A. No.915/1987
and connected cases was taken up in appeal. This is
wholly unjustified since it is the admitted position that the
D
said judgment has been reversed by the apex Court as
per Ext.P.3 and statutory regulation No.5 as substituted
as evidenced by Ext.P.2 stands. Therefore, the very basis
of the impugned decision contained in Ext. P7 is illegal"
E 17.As noticed hereinbefore, the Division Bench of the High
Court in an intra Court appeal filed by the appellant herein modi-
fied the said judgment to the extent that first respondent would
not be entitled to arrears of salary for the period he had not
worked in the promoted post but would be entitled to the fixa-
F tion of salary on the basis of such retrospective promotion.
18. Mr.George, learned counsel appearing on behalf of
the appellant would submit that keeping in view the fact that the
first respondent had only claimed parity with two of his juniors,
he could not be granted promotion with retrospective effect as
G they had been promoted out of turn and having retired, no ac-
tion as regards their reversion to their original post could be
taken.
19. Mr.K.Rajeev, learned counsel appearing on behalf of
the first respondent, on the other hand, urged that as admittedly
H
KERALA STATE ELECTRICITY BOARD v. MR. 695
SARATCHANDRAN P. & ANR.
the said S.G. Rajappan and L. R~dhadevi were junior to the first A
respondent, the High Court judgment warrants no interference.
20. It is now a well settled principle of law that only be-
cause by reason of 'fortuitous' circumstances an employee who .
is junior to another obtains some benefit to which'he is ulUmately
not found to be entitled to, the same by itself may not be a ground B
to confer the same benefit upon the senior ~mployee. We have
noticed hereinbefore that a separate service known as 'Board
Secretariat Service' was formed on 1.4.1964. The said S. G.
Rajappan and L.Radhadevi joined the said services. A sepa-
rate seniority list was being maintained in respect of the said C
wing which was different and distinct from the wing of the Minis-
terial Service. The said S.G.Rajappan and L. Radhadevi were
promoted on the basis of clause 5(c) of the Rules which was
amended with effect from 7.1.1985. The validity of said Rule
·" came to be questioned which was determined by this Court by D
reason of judgment dated 23.7.1996 in C.A.No. 3967/1990.
21. In implementation of the same, although, the first re-
spondent would rank as senior to them but, in our opinion, the
same would not mean that he would be entitled to promotion
with retrospective effect. E
"
22. We agree with the contention of Mr. George, learned
counsel appearing on behalf of the appellant that the said S.G.
Rajappan and L. Radhadevi obtained out of turn promotion and
if the length of service was to be treated as the basis on which F
the inter-se seniority of the employees were to be reckoned,
first respondent indisputably would have been senior but as
noticed hereinbefore they obtained out of turn promotion which
ultimately was found to be illegal.It is not the case of first re-
spondent that he was unjustly denied promotion. It is also not G
his case that he had suffered any pecuniary loss or any other
prejudice. The High Court, therefore, in our opinion was not
correct in holding that the first respondent was entitled to the
relief of promotion with retrospective effect and/or to get any
monetary benefit therefor.
H
696 SUPREME COURT RE?ORTS [2003] 13 S.C.R.
A 23. Article 14 as is well known is a positive concept. Pro-
visions of Article 14 cannot be invoked only because some ille-
gality has been committed by an employer as a result whereof
some employee has obtained benefit. The Constitutional
Scheme of equality clause would appl:t only in a case where the
B parties are similarly situated. No equity can be claimed on the
basis of an illegality.
24. For the reasons aforementioned, the impugned judg-
ment cannot be sustained . It is set aside accordingly. The ap-
peal is allowed. There shall, however be no order as to costs.
c
R.P. Appeal allowed.
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