The main legal point established in the judgment is the application of the 'sit back theory' and the principle of delay and laches in the context of promotions granted over a long period of time.

Shaffique, J.

This appeal is filed by the respondents in WP(C) No.20386/2014 challenging judgment dated 15/1/2015 by which the learned Single Judge allowed the writ petition by setting aside Exts.P5 and P6.

2. The respondent herein, who is hereinafter referred to as the petitioner, filed the writ petition challenging Exts.P5 and P6 to the extent of altering his seniority in the post of Overseer and directing refixation of his salary and further directing recovery of excess pay allegedly drawn by the petitioner.

3. The short facts involved in the writ petition would disclose that the petitioner entered service in the Kerala State Electricity Board (hereinafter referred to as the Board) as Lineman on 15/12/1987. He was granted leave without allowance as per order dated 19/3/1988. He availed of leave from 22/3/1988. The leave was subsequently extended for three years from 22/3/1991 and for another spell of three years w.e.f. 22/3/1994. He rejoined duty on 10/1/1997. His probation was declared on 10/7/1997. He was thereafter promoted as Overseer/Sub Engineer w.e.f. 14/9/1998 and thereafter as Assistant Engineer w.e.f. 13/6/2005. He retired in the said post on 30/11/2013. When his pension papers were being processed, the Accounts Officer raised certain objections which is evident from Ext.P2 dated 20/9/2013. One of the objection was with reference to petitioner's seniority as Overseer/Sub Engineer. On receipt of Ext.P2, petitioner submitted a representation to the Chief Engineer on 8/11/2013 stating that since he was promoted to the post of Sub Engineer after completion of probation, there is no reason to have any doubt regarding the promotion granted in his favour. Since nothing was done in the matter, petitioner approached this Court by filing WP (C) No.1798/2014, which was disposed of by judgment dated 4/2/2014 directing the appellant authorities to consider Ext.P2 dated 8/11/2013 and to pass appropriate orders. Ext.P5 is the order passed on 25/6/2014 by which Chief Engineer (HRM) has observed that the petitioner was not eligible for the seniority to the post of Sub Engineer and Assistant Engineer and therefore the same is required to be reviewed. Ext.P6 is the proceedings dated 30/11/2013 by which the rank of the petitioner was reassigned in the gradation list of Overseer as on 1/1/2004 and direction was issued to make necessary entries regarding the same. It was observed that the petitioner had availed leave without allowance before completion of his probation period and as per the Rule prevalent during the relevant time, he had to be deemed as new entrant and had to start afresh his probation on duty. Therefore, his probation was declared on 10/7/1997 consequent to which his seniority in the cadre of Overseer reckoned w.e.f. 15/12/1987 requires to be reviewed and rank has to be assigned in the gradation list of Overseer as on 1/1/2004. Hence he was placed in the rank between Sri.Divakaran T. and Sri.Abdul Khader, who were Sl.Nos.2813 and 2814 respectively.

4. According to the petitioner, promotions effected several years ago cannot be disturbed as the petitioner is entitled to the benefit of sit back theory. Further, it is contended that Ext.P6 order has been issued in violation of the principles of natural justice as the petitioner was not heard in the matter. It is stated that petitioner has worked for more than 17 years as Sub Engineer and Assistant Engineer and therefore after such a long lapse of time, the promotion granted to him cannot be disturbed.

5. Counter affidavit has been filed by the appellants inter alia contending that Kerala Service Rules (for short KSR) applies in respect of Board employees as well and as per Appendix XII A Part I KSR, by virtue of Proviso 5, petitioner who had availed leave without allowance was not entitled for any benefit during the said leave period and he ought to have started afresh and completed his probation. Further reference is made to Rule 37A of Part I KSR by which it i