Dismissed

Vijayaghosh S v. Kerala Minerals and Metals Ltd.

Kerala HC21 Nov 2016WP(C)/8422/2013

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging the promotion of two respondents appointed via special supernumerary recruitment. The Court held that their appointment was legal and, having been adjusted against vacancies with the petitioners' consent, they are entitled to promotion.

What did the court decide?

Prayers sought (promotion with retrospective effect and reversion of respondents) cannot be granted.

Vijayaghosh S Vs Kerala Minerals and Metals Ltd. — Service and Employment | 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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MONDAY, THE 21ST DAY OF NOVEMBER 2016/30TH KARTHIKA, 1938

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WP(C).No. 8422 of 2013 (C)

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PETITIONER(S):

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1. VIJAYA GHOSH.S., E.NO.090 933, SCIENTIFIC OFFICER, KERALA MINERALS AND METALS LTD,

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CHAVARA, KOLLAM.

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2. MOHANAN V., EMPLOYEE NO.090959, ASSISTANT SCIENTIFIC OFFICER,

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KERALA MINERALS AND METALS LTD., CHAVARA, KOLLAM.

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3. ROY J. PAUL, E.NO.090961, ASSISTANT SCIENTIFIC OFFICER, KERALA MINERALS AND METALS LTD, CHAVARA, KOLLAM.

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BY SRI.N.SUKUMARAN,SENIOR ADVOCATE ADVS. SRI.S.SHYAM SRI.N.K.KARNIS SRI.KURUVILLA JOHN SRI.BOBBYMATHEW KOOTHATTUKULAM

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RESPONDENT(S):

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1. KERALA MINERALS AND METALS LTD., SANKARAMANGALAM, CHAVARA, KOLLAM,

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REPRESENTED BY ITS MANAGING DIRECTOR, KOLLAM DISTRICT, PIN- 691 583

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2. STATE OF KERALA, REPRESENTED BY ITS SECRETARY,

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INDUSTRIES DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM -695 001

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3. KISHORE KUMAR T.K., EMPLOYEE NO.1325, SCIENTIFIC OFFICER,

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KERALA MINERALS AND METALS LTD, SANKARAMANGALAM, CHAVARA, KOLLAM, PIN -691 583

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2/-

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-2-

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WP(C).NO.8422/2013

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4. BABU RAJ K., EMPLOYEE NO.1366, SCIENTIFIC OFFICER, KERALA MINERALS AND METALS LTD, SANKARAMANGALAM, CHAVARA, KOLLAM -691 583

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R1 BY SRI.B.S.KRISHNAN,SENIOR ADVOCATE ADV. SMT.LATHA KRISHNAN R2 BY GOVERNMENT PLEADER SMT. RAJI T. BHASKAR R3 & R4 BY ADV. SRI.M.V.THAMBAN

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/10/2016, THE COURT ON 21/11/2016 DELIVERED THE FOLLOWING:

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sts

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WP(C).No. 8422 of 2013 (C)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXT.P1 TRUE COPY OF THE GUIDELINES ADOPTED BY THE 1ST RESPONDENT

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EXT.P2 TRUE COPY OF INFORMATION ISSUED BY THE PUBLIC INFORMATION OFFICER OF THE 1ST RESPONDENT ISSUED UNDER THE RIGHT TO INFORMATION ACT DATED 13-07-2007

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EXT.P3 TRUE COPY OF THE APPLICATION SUBMITTED BY THE 3RD PETITIONER AND 2 OTHERS DT. 2-6-2007

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EXT.P4 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE 1ST RESPONDENT BEFORE THIS HON'BLE COURT IN WPC NO.15886/2005 DATED 1-06-2005

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EXT.P5 TRUE COPY OF THE SETTLEMENT BETWEEN THE 1ST RESPONDENT AND THE CONCERNED TRADE UNIONS DATED 9-06-2005

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EXT.P6 TRUE COPY OF THE ORDER DATED 4-07-2005 IN WPC NO.15886/2005 4-07-2005

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EXT.P7 TRUE COPY OF THE JUDGMENT DT 3-1-2013 IN WPC NO.15886/2005

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EXT.P8 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONERS BEFORE THE HON'BLE MINISTER OF INDUSTRIES OF KERALA DATED 28-12-2012

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EXT.P9 TRUE COPY OF THE LETTER DATED 18-08-2012 ISSUED BY THE 2ND RESPONDENT REJECTING EXT.P8

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EXT.P10 TRUE COPY OF THE REVIEW PETITION SUBMITTED BY THE PETITIONERS BEFORE THE 2ND RESPONDENT DATED 22-12-2012

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EXT.P11 TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT DATED 09-06-2011

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EXT.P12 TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT DATED 02-01-2012

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EXT.P13 TRUE COPY OF THE LETTER ISSUED TO THE 1ST PETITIONER FROM THE 1ST RESPONDENT DATED 17/12/1999

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EXT.P14 TRUE COPY OF THE CIRCULAR ISSUED BY THE GOVERNMENT OF INDIA BEARING NO.F18-36/57-T5 DATED 19/8/1958

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EXT.P15 COPY OF THE CERTIFICATE DATED 24/8/1992 ISSUED TO THE 2ND PETITIONER.

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EXT.P16 COPY OF THE CERTIFICATE DATED 24/8/1992 TO THE 3RD PETITIONER.

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2/-

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-2-

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WP(C).NO.8422/2013

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EXT.P17 COPY OF THE APPOINTMENT ORDER ISSUED BY THE 1ST RESPONDENT TO PETITIONERS 2 AND 3 DATED 30/8/1986

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RESPONDENT(S)' EXHIBITS:

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EXT.R1(A) TRUE COPY OF THE GOVERNMENT ORDER GO(RT) NO.494/96/ID DATED 23/5/1996

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EXT.R1(B) TRUE COPY OF THE GUIDELINES FOR PROMOTION OF WORKMEN IN THE 1ST RESPONDENT COMPANY

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EXT.R1(C) TRUE COPY OF THE OFFER OF APPOINTMENT OF RESPONDENT NO.3 DATED 4/10/1999 AS TRAINEE

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EXT.R1(D) TRUE COPY OF THE APPOINTMENT ORDER OF RESPONDENT NO.3 DATED 4/11/1999 AS TRAINEE

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EXT.R1(E) TRUE COPY OF THE OFFER OF APPOINTMENT OF RESPONDENT NO.4 AS TRAINEE DATED 4/10/1999

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EXT.R1(F) TRUE COPY OF THE APPOINTMENT ORDER OF RESPONDENT NO.4 AS TRAINE DATED 4/11/1999

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EXT.R1(G) TRUE COPY OF THE APPOINTMENT ORDER OF 3RD RESPONDENT AS ASSISTANT SCIENTIFIC OFFICER

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EXT.R1(H) TRUE COPY OF THE APPOINTMENT ORDER OF 4TH RESPONDENT AS ASSISTANT SCIENTIFIC OFFICER.

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EXT.R1(I) TRUE COPY OF THE ORDER OF CONFIRMATION OF 3RD RESPONDENT AS ASSISTANT SCIENTIFIC OFFICER

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EXT.R1(J) TRUE COPY OF THE ORDER OF CONFIRMATION OF 4TH RESPONDENT AS ASSISTANT SCIENTIFIC OFFICER

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EXT.R1(K) TRUE COPY OF THE SANCTIONED AND EXISTING POSTS OF OFFICERS IN THE 1ST RESPONDENT COMPANY IN THE YEAR 1999

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EXT.R1(L) TRUE COPY OF THE SANCTIONED AND EXISTING POSTS OF OFFICERS IN THE 1ST RESPONDENT COMPANY AS ON 01/2/2002

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EXT.R1(M) TRUE COPY OF THE PROMOTION ORDER OF THE 1ST PETITIONER. EXT.R1(N) TRUE COPY OF THE ORDER DATED 5/8/2000 PROMOTING THE 2ND PETITIONER AN ANALYST GRADE A

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EXT.R1(O) TRUE COPY OF THE ORDER DATED 29/01/2002 PROMOTING THE 3RD PETITIONER AS ANALYST GRADE A

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3/-

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-3-

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WP(C).NO.8422/2013

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EXT.R1(P) TRUE COPY OF THE RELEVANT DETAILS IN THE SPECIAL RULES OF RECRUITMENT OF THE COMPANY

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EXT.R4(A) TRUE COPY OF THE GOVERNMENT ORDER G.O(RT)NO.494/96/ID DATED 23/5/1996

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EXT.R4(B) TRUE COPY OF THE GUIDELINES NO.TP/PD/PL-5/80 DATED 6/9/1985 ISSUED BY THE 1ST RESPONDENT COMPANY

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EXT.R4(C) COPY OF THE COMMUNICATION NO.TD/PD/G-10/12 DATED 30/03/2012 TO THE ADDITIONAL CHIEF SECRETARY TO THE GOVERNMENT BY THE 1ST RESPONDENT COMPANY

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EXT.R4(D) COPY OF THE SENIORITY LIST DATED 9/7/2010 PUBLISHED BY THE 1ST RESPONDENT COMPANY.

/TRUE COPY/

P.A.TO JUDGE

sts

ANU SIVARAMAN, J.

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= = = = = = = = = = = = = = = = = = = = = = = = W.P.(C).No.8422 of 2013

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= = = = = = = = == = = = = = = = = = = = = = = = Dated this the 21^st day of November, 2016

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JUDGMENT

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1.The writ petition is filed challenging Exhibits P9, P11 and P12 orders and seeking directions to respondents 1 and 2 to promote petitioners 1 and 2 as Assistant Scientific Officers with retrospective effect from the dates on which respondents 3 and 4 were initially appointed to that post, with monetary benefits. They consequentially seek reversion of respondents 3 and 4. The petitioners and respondents 3 and 4 are the employees of the 1^st respondent. The petitioners' claim relates to their seniority over respondents 3 and 4 in the cadre of Assistant Scientific Officer and preference in the matter of further promotion to the higher cadre of Scientific Officers.

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2.The petitioners, who were appointed as Junior Analyst Grade B (later re-designated as Analyst) on 05.05.1986, 26.08.1986 and 28.08.1986 respectively, challenge the promotions granted to respondents 3 and 4 who were recruited as Trainee Assistant Scientific Officers on 01.11.1999 and 04.11.1999 respectively. It is contended that respondents 3 and 4 were appointed

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against supernumerary posts of Assistant Scientific Officers and can have no claim for further promotion in preference to the petitioners who are included in the feeder category. The petitioners' claim is that they should have been promoted as Assistant Scientific Officers in 1996 and 2001. However, promotion was actually granted to them in 2005, 2007 and 2008 respectively. They claim that respondents 3 and 4 who were appointed in supernumerary posts would have no claim to seniority over the petitioners, who are entitled to preference for further promotions. The petitioners had preferred representations before the 1^st respondent which remained unattended and respondents 3 and 4 have been granted promotion as Scientific Officers in preference to the petitioners. This is challenged in this writ petition.

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3.Heard the learned senior counsel appearing for the petitioners, the learned standing counsel appearing for the 1^st respondent, the learned Government Pleader and the learned counsel for respondents 3 and 4.

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W.P.(C).No.8422/13

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4.The learned counsel for the petitioners contended that Exhibit P1 guidelines for promotion specifically excludes direct recruitment to the post of first level Executive Officers, including Assistant Scientific Officer. All posts in the said cadre are to be filled up by promotion. It is therefore contended that respondents 3 and 4, being direct recruits to the post of Assistant Scientific Officer in supernumerary posts, cannot claim any further promotion to the post of Scientific Officer in preference to the petitioners who are regular appointees to the cadre of Assistant Scientific Officer. It is therefore contended that Exhibits P9, P11 and P12 are violative of the promotion policy and are liable to be set aside.

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5.The 1^st respondent employer has filed a counter affidavit stating that the Government had created 20 supernumerary posts by Exhibit R1(a) GO dated 23.5.1996 for filling up backlog vacancies of SC/ST including two posts of Analyst (redesignated as Assistant Scientific Officer). It is further stated in the counter affidavit as follows:-

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W.P.(C).No.8422/13

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“The petitioners possess only the qualification of graduation in Chemistry and they were appointed as Junior Analyst Grade B initially. The appointment of respondent No.3 and 4 was as part of curing the backlog of SC and ST candidates in the KMML. Respondents 3 and 4 possessed MSc Chemistry degree and were eligible to be appointed as per the relaxation given by the Government regarding experience. To be appointed as Analyst in the KMML, the following qualification, educational and experience is necessary -”Candidates should have MSC Degree in Chemistry with 3 years experience or BSc Degree with 8 years experience. In case suitable candidates with the required experience are not available for the post of Analyst, candidates possessing MSc Chemistry will be considered against the post as a trainee.”

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6.It is further submitted that as per the seniority rule prevailing in the company, the seniority in a particular post has to be calculated from the date in which incumbents have been appointed/given promotion to that particular post and not from the date of entry into service of the company as such. Herein

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respondents 3 and 4 have been appointed as Assistant Scientific Officers on 01.02.2002 and 04.02.2002 respectively, whereas the petitioners were appointed as Assistant Scientific Officer only in the years 2005, 2007 and 2008. Thus, in the post of Assistant Scientific Officer, petitioners have no claim for seniority over respondents 3 and 4, it is contended.

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7.Respondents 3 and 4 contend that they were appointed against the backlog vacancies in supernumerary posts on the condition that they would be adjusted against arising vacancies. They were thus adjusted against the vacancies of Assistant Scientific Officer which arose after their appointment long before the petitioners attained eligibility for such promotion. Being fully qualified, they were further promoted as Scientific Officers in the years 2011 & 2012 respectively. The present challenge raised against their appointment and absorption in the cadre of Assistant Scientific Officer is hopelessly belated and cannot be considered, it is contended.

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8.Respondents 3 and 4 have a further case that by office order dated 6.09.1985, guide lines for promotion to employees in managerial cadres of TiO2 Unit of the company had been revised prescribing that 50% of the vacancies in the post of Assistant Process Engineers and equivalent posts will be filled by promotion. It is further contended that Assistant Scientific Officer being an equivalent post, there is no merit in the contention that all the posts were liable to be filled up by promotion and that no direct recruitment could have been made. It is further contended that in view of the fact that respondents 3 and 4 were appointed on the strength of a special order permitting special recruitment in 1996, without challenging the said Government Order or even the orders of appointment given to respondents 3 and 4, the challenge against their promotion to higher cadres at this distance of time cannot be sustained.

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9.Further pleadings had been placed on record with regard to the qualifications and eligibility of the petitioners for appointment as Analyst (re-designated as Assistant Scientific

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Officer) from earlier dates. The 1^st respondent had also filed an additional counter affidavit and produced Exhibit R1(b) purporting to be the full text of Exhibit P1 guideline for promotion. It is stated that Clause 14 of the said guidelines specifically provided for exceptions. Sub-clause (d) of Clause 14 reads as follows:-

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“d) Notwithstanding the provisions of these guidelines, vacancies may be filled by direct recruitment of Scheduled Castes/Scheduled Tribes, Physically handicapped persons, dependents of those workman of the Company who die in harness or such other categories in accordance with the rules/instructions orders/guidelines issued by the Government from time to time.”

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10.I have considered the contentions advanced on either side at considerable length. It is an admitted fact that respondents 3 and 4 had been appointed as trainees against the post of Assistant Scientific Officer under special recruitment during November, 1999. After completion of successful training, they were appointed as Assistant Scientific Officer on 01.02.2002 and 04.02.2002. Their appointment was against supernumerary post on condition that they would be adjusted

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against next arising vacancy. The petitioners did not challenge the appointment of respondents 3 and 4 or the orders of confirmation issued to them.

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11.Exhibit R1(b) specifically provide that notwithstanding the

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provision of the guidelines, special recruitment can be resorted to in accordance with orders issued by the Government from time to time. It is not in dispute that respondents 3 and 4 were appointed on the strength of Government Orders to fill up the shortage of SC/ST hands. In the above circumstances, the appointment of respondents 3 and 4 was perfectly legal and valid. Moreover, the initial engagement of respondents 3 and 4 was in the year 1999. They were regularised as Assistant Scientific Officers in the year 2002. Their appointment was on a supernumerary basis but subject to the specific condition that they would be adjusted against subsequently arising vacancies. This was also done. The name of the respondents were included in the seniority list of Assistant Scientific Officers and they were shown above the petitioners. This was also not challenged.

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In the above view of the matter, I am of the opinion that the challenge against the promotion of respondents 3 and 4 as Scientific Officers at the distance of time is not maintainable by reasons of long and unexplained delay. On the merits of the case also, since the appointment of respondents 3 and 4 as Assistant Scientific Officers was by creation of supernumerary posts on the specific condition that they would be adjusted against next arising vacancies, the contention of the petitioner that the respondents would always remain ex-cadre and would have no claim for promotion as Scientific Officers in their turn is devoid of merits. In the above circumstances, the prayers sought for in this writ petition cannot be granted. The writ petition fails and is accordingly dismissed.

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sd/- Anu Sivaraman, Judge

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Vijayaghosh S v. Kerala Minerals and Metals Ltd.

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Vijayaghosh S v. Kerala Minerals and Metals Ltd.

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