REPORTABLE

               IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL   APPEAL NO.  5813   OF 2008 (Arising out of S.L.P. (C) No.8403/2006

   Kerala State Electricity Board  ...Appellant

Versus

   Mr.Saratchandran P. & Anr.       ...Respondents                      

O  R  D  E  R

Leave granted.

(1) The  Kerala  State  Electricity  Board   constituted  and

incorporated under the Electricity(Supply) Act, 1948 is before us 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 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.

(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  

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therefor.  Indisputably,  whereas  the  respondent  No.1  was  appointed  as  a  Lower

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.

(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 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 Officer on 21.1.1984 and L.Radhadevi was

promoted to the post of Assistant Accounts Officer on 3.3.1983, the first respondent

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 appointed to the said post on 1.9.1990,whereasS.G.Rajappan was

appointed as Senior Accounts

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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

service on 31.5.1996, L.Radhadevi and S.G.Rajappan superannuated 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) 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 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."

(7) However, the same caused heart burning amongst a section of

the employees. Representations were filed in regard thereto and ultimately the Board

took  a  decision  to  amend  the  aforesaid  clause(c).  On  or  about  7.11.1985,  an

amendment was carried into effect as a result whereof the said amended regulation

read as under:

"  The  relative  seniority  of  persons  drawn  from  the  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 Commission or the Board to the respective establishment under the  Board  subject  to  the  application  of  rules  regarding  obligatory  departmental tests".

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(8) Validity of the said amendment was questioned before the High

Court of Kerala. It was held to be invalid.

(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  allowed  the  appeal

preferred by the Kerala  State Electricity Board holding as under:

" Shri Iyer'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 Secretariat Service. This was illustrated by the learned counsel by drawing our attention to equation of posts as 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 Superintendent.  Learned  counsel  contended  that  the  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 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 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 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  

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and 31.7.1993 respectively, they would have also met the same fate but no action could

be taken in this behalf.

(12) The seniority of the first respondent vis-a-vis the others in terms

of  the  this  Court's  judgment  dated  23.7.1996  was  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  with  retrospective  effect,inter-alia  ,

contending that as S.G. Rajappan and L. Radhadevi had been promoted before him,

he 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 the B.O. dated 26.10.1998 ref. 3rd cited. 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  nature  and aspects  of  which  case  the  honourable  Supreme Court of India found analogous to that of my case ( C.A.s 3974 & 3968/1990) 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 same dates (at least on which they were promoted (to the respective higher ranks).

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 To conclude, I request that all promotions to me right from the rank of Senior Assistant to Senior Accounts Officer, 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 month from the date of receipt of 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 the same benefit.

(16) First  Respondent  filed  a  writ  petition  aggrieved  by  and

dissatisfied therewith which was allowed by the learned Single Judge holding :

" 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 L.Radhadevi and S.G. Rajappan and that his pay  and  pension  have  to  be  mouled  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  the  relative  seniority  of  persons  shall  be

determined based on their ranking in the 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 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.

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  

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connected cases  was  taken up in appeal.  This  is  wholly  unjustified  since  it  is  the admitted position that the 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"

(17) As noticed hereinbefore, the Division Bench of the High Court

in an intra Court appeal filed by the appellant herein modified 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 fixation

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 they had been promoted out of turn and having retired, no

action 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 the said S.G. Rajappan  and

L. Radhadevi were junior to the first respondent, the High Court judgment warrants

no interference.

(20) It is  now a well  settled principle of law that only because by

reason of 'fortuitous'  circumstances an employee who is  junior to another obtains

some benefit to which he is ultimately not found to be entitled to,  the same  

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by itself may not be a ground to confer the same benefit upon the senior employee.

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 separate seniority list was being maintained in respect of the said

wing which was different and distinct from the wing of the Ministerial 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 reason of judgment dated

23.7.1996 in C.A.No. 3967/1990.   

(21) In implementation of the same, although, the first respondent

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.  

(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  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 respondent that he was unjustly denied

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promotion. It is also not 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.

(22) Article 14 as is well known is a positive concept. Provisions of

Article 14 cannot be invoked only because some illegality has been committed by an

employer as a result whereof some employee has obtained benefit. The Constitutional

Scheme of equality clause would apply only in a case where the parties are similarly

situated. No equity can be claimed on the basis of an illegality.

(23) For the reasons aforementioned, the impugned judgment cannot

be sustained. It is set aside accordingly. The appeal is allowed. There shall, however

be no order as to costs.

......................J.       [S.B. SINHA]

.....................J                                       [ CYRIAC JOSEPH ]

New Delhi, September 18, 2008.

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