Disposed

B. Suresh Kumar v. Cochin Port Trust

Kerala HC8 Dec 2016WP(C)/5268/2013

Case brief

AI extract

What is this about?

A Kerala High Court writ petition challenging the promotion of a junior employee to the vacancy created by reverting a senior colleague. The court directed the first respondent to consider the senior eligible petitioner for the Foreman post by treating the 7th roster point as unreserved.

What did the court decide?

Direction to the first respondent to consider the petitioner's claim for appointment as Foreman against the 7th point in the post-based roster treating it as unreserved.

B. Suresh Kumar Vs Cochin Port Trust — Pension and Retirement Benefits | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

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THURSDAY, THE 8TH DAY OF DECEMBER 2016/17TH AGRAHAYANA, 1938

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WP(C).No. 5268 of 2013 (G)

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PETITIONER(S):

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B. SURESH KUMAR STAFF NUMBER 6173, MOTOR MECHANIC HSK I MARINE DIESEL SECTION DRY DOCK, COCHIN PORT TRUST, COCHIN-3. ARATHI HOUSE, NO. XX/1871, NEAR ERNATTU TEMPLE ROAD, PALLURUTHY.P.O., COCHIN-6.

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BY ADVS.SRI.GEORGE THOMAS (MEVADA)(SR.) SRI.MANU GEORGE KURUVILLA SMT.RINU JOSE

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RESPONDENT(S):

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1. COCHIN PORT TRUST W. ISLAND, COCHIN-9, REPRESENTED BY ITS SECRETARY.

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2. THE CHIEF MECHANICAL ENGINEER, MECHANICAL ENGINEERING DEPARTMENT, COCHIN PORT TRUST, COCHIN-9.

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3. SRI. M. BIBIN, STAFF NO. 7149, MOTOR MECHANIC HSK-1, MARINE DIESEL SECTION DRY DOCK, COCHIN PORT TRUST, COCHIN-3.

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R3 BY ADV. SRI.C.V.MILTON R1&2 BY ADV. SRI.V.ABRAHAM MARKOS R1&2 BY ADV. SRI.BINU MATHEW R1&2 BY ADV. SRI.TOM THOMAS (KAKKUZHIYIL) R1&2 BY ADV. SRI.ABRAHAM JOSEPH MARKOS R1&2 BY ADV. SRI.ISAAC THOMAS R BY SRI.M.GOPIKRISHNAN NAMBIAR

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-12-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 5268 of 2013

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1: COPY OF ORDER DATED 1.1.1990. EXHIBIT P2: COPY OF ORDER DATED 1.6.2005.

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EXHIBIT P3: COPY OF ORDER DATED 1.2.2007.

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EXHIBIT P4: COPY OF RECRUITEMENT RULES APPLICABLE FOR PROMOTION TO THE POST OF FOREMAN.

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EXHIBIT P5: COPY OF SENIORITY LIST OF MARINE CRAFT SECTION, AS ON 1.1.1995.

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EXHIBIT P6: COPY OF OFFICE ORDER DATED 10.12.12.

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EXHIBIT P7: COPY OF LIST OF CLASS III EMPLOYEES IN DOCKING AND LABOUR SECETION FOR ASSISTANT FOREMAN AND CHARGEMAN.

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EXHIBIT P8: COPY OF MODEL ROASER.

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EXHIBIT P9: COPY OF COMMUNICATION DATED 1.9.2012.

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EXHIBIT P10: COPY OF REPRESENTATION SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT DATED 16.2.2013.

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EXHIBIT P11: COPY OF OFFICE MEMORANDUM EXCLUDING THE ANNEXURES DATED 2.7.1997.

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RESPONDENTS' EXHIBITS:

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EXHIBIT R2(a): COPY OF RECRUITMENT RULES TO THE PSOT FO FOREMAN.

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EXHIBIT R2(b): COPY OF PROCEEDINGS OF DPC PROMOTING MR.P.K.RAVI TO THE POST OF FOREMAN.

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EXHIBIT R2(c): COPY OF PROCEEDINGS OF DPC RECOMMENDING PROMOTION OF MR.V.P.SUNDARAM TO THE POST OF FOREMAN.

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EXHIBIT R2(d): COPY OF POST-BASED ROSTER (MODEL 'L' SHARE ROSTER) MAINTAINED BY THE COCHIN PORT AS PER RESERVATION RULES FOR the POST OF FOREMAN (MARINE).

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EXHIBIT R2(e): COPY OF LETTER DATED 10.6.2011 ISSUED BY THE DoPT, GOVERNMENT OF INDIA.

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EXHIBIT R2(f): COPY OF RELEVANT PAGES OF THE POST-BASED ROSTER MAINTAINED BY THE COCHIN PORT AS PER RESERVATION RULES FOR THE POST OF MOTOR MECHANIC HSK-1.

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EXHIBIT R2(g): COPY OF POST-BASED ROSTER MAINTAINED BY THE COCHIN PORT AS PER RESERVATION RULES FOR THE POST OF ASSTT. FOREMAN.

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WP(C).No. 5268 of 2013

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-2-

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EXHIBIT R2(h): COPY OF RELEVANT PAGES OF THE POST-BASED ROSTER MAINTAINED BY THE COCHIN PORT AS PER RESERVATION RULES FOR THE POST OF CHARGEMAN IN DOCK & LABOUR.

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EXHIBIT R3(a): COPY OF LETTER NO.A4/RTI/RGP/2011-M DATED 16.11.2011.

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EXHIBIT R3(b): COPY OF O.M.NO.20011/1/96-ESTT.(D) DATED 30.1.1997. EXHIBIT R3(c): COPY OF OM.NO.20011/1/2001 EST.(D) DATED 21.1.2002.

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EXHIBIT R3(d): COPY OF PAGE NOS.2, 5, 10 & 11 OF THE INSPECTION REPORT ON ROSTER VERIFICATION DATED 19.10.2011.

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/TRUE COPY/

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PS TO JUDGE

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ANU SIVARAMAN, J.

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W.P(C).No. 5268 of 2013

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Dated this the 8^th December, 2016

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JUDGMENT

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This writ petition is filed with the following prayers:

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“i) call for the records leading to the issue of Exhibit P6 order and quash the same by the issue of a writ of certiorari or such other writ order or direction to the extent it granted promotion to the third respondent as Motor Mechanic (HSK-I) to the vacancy created by reverting the senior hand Sri L Sanu.

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ii) declare that the petitioner, who is the senior most eligible hand in the feeder category MM (HSK-I), is entitled to be promoted to the vacancy of Foreman Marine Diesel Section (Dry Dock) that would arise on account of the retirement of Sri.Antony Walter Fernandez on 28.2.2013.

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iii) direct respondents 1 and 2 to fill up the vacancy of Foreman Marine Diesel Section (Dry Dock) on regular basis and consider the petitioner for filling up the vacancy that would arise on account of the retirement of Mr.Antony Walter Fernandez.

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iv) direct the respondents 1 and 2 to strictly comply with Regulation 24 of the Cochin Port Trust Employees Regulations (Recruitment, Seniority and Promotion) regulations 2010 for publication of seniority lists of all employees in Cochin Port Trust annually and circulate the same.

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v) issue a writ of mandamus or such writ order or direction compelling the respondents 1 and 2 to dispose of Exhibit P10 representation in accordance with law before filling up the post of Foreman Marine Diesel Section (Dry Dock) in Cochin Port Trust.”

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2 . Heard the learned Senior Counsel appearing for the

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petitioner, learned Standing Counsel appearing for respondents 1

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and 2 and the learned counsel for the 3^rd respondent.

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WP(C).5268/13

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The contention of the petitioner is that he was appointed as Motor Mechanic Assistant on 8.2.1984. He was promoted as Motor Mechanic (Grade-III) by Exhibit P1 order dated 1.1.1990 and as Motor Mechanic Highly Skilled by Exhibit P2 order dated 1.6.2005. He was further promoted as Motor Mechanic Highly Skilled (Grade-I) on 1.2.2007. It is stated that the 3^rd respondent was appointed on 1.10.2005 as Motor Mechanic (Grade-III) and was promoted as Motor Mechanic Highly Skilled ('MM (HSK-1)' for short) only on 29.8.2011. By Exhibit P6 he has been promoted as Motor Mechanic Highly Skilled (Grade-II) with effect from 1.12.2012 and he is being considered for promotion as Foreman in violation of the post based roster which was provided for in Government of India O.M dated 2.7.1997.

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The petitioner contends that there are two posts of Foreman in the Marine Diesel Section of the Cochin Port Trust. It is contended that going by the post based roster, only the 7^th turn in the roster could be filled up by a Scheduled Caste candidate. However, the 4^th and 6^th points in the roster have already been filled up by appointing Scheduled Caste candidates and therefore, the 7^th point in the roster should be filled up by adjusting an unreserved hand against the same. The next arising vacancy

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WP(C).5268/13

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should be filled up by appointing the petitioner, who is far senior to the persons who have now been adjusted, it is contended. It is further stated that a vacancy of Foreman, which arose on 28.2.2013 on the retirement of one Antony Walter Fernandez, is to be treated as open unreserved point in the roster, since two points have already been filled up by appointing Scheduled Caste candidates, i.e., the 4^th and 6^th turns. The petitioner, therefore, claims that the petitioner is entitled to promotion in terms of seniority and eligibility to be appointed as Foreman against the 7^th point in the post based roster.

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A counter affidavit has been filed on behalf of respondents 1 and 2 contending that the persons had been appointed against the 4^th and 6^th turns in the 1^st cycle in the above post based roster for the post of Foreman strictly on their merit against unreserved posts. It is further contended that going by the post based roster, the 7^th point in the said roster is to be filled up by appointing a Scheduled Caste hand and therefore, the 3^rd respondent is eligible to be considered against the said post. It is further stated that the 3^rd respondent had the requisite qualification for being considered for appointment as Foreman going by Exhibit P4 recruitment rules, which is produced as

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WP(C).5268/13 4

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Exhibit R2(a). With regard to Exhibit P6, it is submitted that promotion to the post of MM (HSK-1) is from MM (HSK) in the respective trade if not available from skilled artisans with five years experience. It is submitted that on 1.4.2001. one MM (HSK1) backlog vacancy arose in the 7^th point in the 1^st cycle and the said post was filled up by promoting an unreserved candidate. Thereafter, when another post of MM (HSK-1) became vacant on 2.4.2012 in the resultant vacancy due to promotion of one K.B.Siddick, one L.Sanu, general candidate was promoted as HSK1 on ad hoc basis. It is stated that thereafter, the Department of Personnel & Training, Government of India directed the respondents to make earnest efforts to fill up the backlog vacancies. It is, therefore, stated that the backlog vacancy, which arose at the 7^th point in the 1^st turn has been filled up by adjusting the 3^rd respondent against that turn and this has resulted in the reversion of L.Sanu by Exhibit P6 order. It is, therefore, contended that the 3^rd respondent, on the strength of Exhibit P6, became qualified for being considered for promotion to the post of Foreman.

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I have considered the contentions advanced on behalf of the parties to this writ petition. It is clear that the petitioner who

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WP(C).5268/13

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was appointed as Motor Mechanic Assistant on 8.2.1984 was senior to the 3^rd respondent as well as the persons who have now been adjusted against the 4^th and 6^th turns in the post based roster operational for the post of Foreman. It is further contended that the 3^rd respondent's claim for promotion as Foreman arose on the strength of Exhibit P6 order by which he has been adjusted against the 7^th roster point in the 1^st turn for promotion to the post of HSK-1. Respondents 1 and 2 have produced Exhibit R2(f) post based roster, which was operated for promotion to the post of HSK-1. The number of posts is 7. It is clear from the roster that the 1^st Scheduled Caste turn in the roster came at point No.7 which was filled up by one P.A.Joseph, an unreserved candidate. It is seen from the remarks column of Exhibit R2(f) that P.A.Joseph is promoted as Assistant Foreman on 1.4.2001 and the resultant vacancy was adjusted in the 3^rd point of the 3^rd cycle. However, in the 1^st cycle itself, at point No.9, i.e., the 2^nd replacement turn, one P.K.Ravi, who is a Scheduled Caste candidate, has been appointed against the unreserved turn and adjusted against the vacancy created by the promotion of P.A.Joseph on 1.4.2001. As such, the backlog vacancy which was available at turn No.7 in the post based roster arose in the post of HSK-1 stood adjusted by the

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WP(C).5268/13

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posting of Sri.P.K.Ravi against the said point with effect from 1.4.2001. Thereafter also, one N.Kuttan, a Scheduled Caste candidate, has been adjusted against the Scheduled Tribe turn at roster point No.14 and Sri.V.P.Sundaran has been appointed against the unreserved turn at point No.4.

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The contention raised by the 2^nd respondent is that the 3^rd respondent has been adjusted against the reserved post available at the 7^th point of 1^st cycle. The petitioner's specific contention is that he is far senior to the persons now adjusted against the open turns of Foreman. He contends that those persons had enjoyed the benefit of accelerated promotions and therefore they would not be entitled to be adjusted against 4^th and 6^th turns in the post based roster of Foreman, since the identity of the reserved and unreserved categories has to be maintained in the post based roster. He claims that since the 4^th and 6^th open points have already been filled up by appointing Scheduled Caste hands who had been granted the benefit of accelerated promotions, the 7^th point which, according to the roster, is to go to a Scheduled Caste hand which has to be filled up by appointing a senior candidate from the unreserved category who has been in the waiting list and who is senior to the feeder category as well. It is further

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WP(C).5268/13

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contended that since Exhibit P6 order is vitiated by an error apparent on the face of records, the wrong promotion given to the 3^rd respondent in the category of MM (HSK-1) should not be taken into consideration while considering the claim for promotion to the post of Foreman.

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It is evident from a consideration of pleadings and materials on record that the petitioner was senior to the 3^rd respondent as well as to the persons who have been adjusted against turn Nos.4 and 6 in the point based roster. The method of appointment to the post of Foreman is by promotion by selection failing which by direct recruitment from Assistant Foreman in respective trades in Dry Dock failing which from MM (HSK-1) of the respective trades in Dry Dock. The qualification prescribed is ITI or ITC certificate or its equivalent with 20 years experience in the skilled category posts in the respective trades.

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It is, therefore, clear that the petitioner's claim for promotion to the post of Foreman in the 7^th roster point treating it as an unreserved point is to be considered by the 1^st respondent before any orders are passed filling up the post. The petitioner admittedly possesses all the qualifications prescribed for the vacancy. If the 3^rd respondent had not been granted the

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WP(C).5268/13

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accelerated promotion to the post of HSK-1 by Exhibit P6 order, he would not be entitled to be considered for promotion to the post of Foreman (Marine Diesel Section) Dry Dock, since he does not have the requisite length of service to be so considered. In the above circumstances, the petitioner, who is a senior hand with all the prescribed qualifications, would be entitled to be considered for promotion as Foreman (Marine Diesel Section) Dry Dock.

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In the result, there will be a direction to the 1^st respondent to consider the claim raised by the petitioner for appointment as Foreman in the Marine Diesel Section in the 7^th point in the post based roster by treating it as unreserved, in view of the filling of the 4^th and 6^th turn by Scheduled Caste hands and to pass orders on the same after hearing the petitioner within a period of three weeks from the date of receipt of a copy of this judgment. Till orders are so passed and communicated to the petitioner, no orders promoting any other person to the post of Foreman shall be issued by the respondents.

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The writ petition is ordered accordingly.

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ANU SIVARAMAN

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JUDGE

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vgs9/12

B. Suresh Kumar v. Cochin Port Trust

Case brief

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B. Suresh Kumar v. Cochin Port Trust

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