Dismissed

Sreelekha S v. Union of India

Kerala HC17 Sept 2018WP(C)/23237/2017

Case brief

AI extract

What is this about?

The Court dismissed a writ petition challenging the denial of promotion to Junior Assistants and Assistants in the Rubber Board. Finding that posts were reduced due to restructuring and excess manpower under government austerity measures, the Court held the petitioners cannot insist on promotion in the absence of a statutory mandate to fill vacancies.

What did the court decide?

Writ petition dismissed with liberty to approach the Board for promotion when the Board attains suitable financial position.

Sreelekha S Vs Union of India — Pension and Retirement Benefits | Kerala HC (2018)

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W.P(c).No.23237/2017

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE SMT. JUSTICE P.V.ASHA

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MONDAY ,THE 17TH DAY OF SEPTEMBER 2018 / 26TH BHADRA, 1940

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WP(C).No. 23237 of 2017

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PETITIONER/S:

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1 SREELEKHA S AGED 47 YEARS

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JUNIOR ASSISTANT GR.I, R.P.ACCOUNTS DIVISION, RUBBER BOARD HEAD OFFICE, KOTTAYAM-686002.

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2 RAJESH BABU G.

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JUNIOR ASSISTANT GR.I, P&PK DIVISION, RUBBER BOARD HEAD OFFICE, KOTTAYAM-686002.

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SHYJU VARGHESE

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JUNIOR ASSISTANT GR.I, R.P.ACCOUNTS DIVISION,RUBBER BOARD HEAD OFFICE, KOTTAYAM-686002.

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4 CISILY VARGHESE JUNIOR ASSISTANT GR.I, RUBBER BOARD REGIONAL OFFICE, PATHANAMTHITTA P.O., PATHANAMTHITTA-689645.

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BY ADVS.

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SRI.KALEESWARAM RAJ KUM.A.ARUNA SMT.RIYA RAYMOL IYPE

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RESPONDENT/S:

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1 UNION OF INDIA REPRESENTED BY THE SECRETARY TO GOVERNMENT, MINISTRY OF COMMERCE AND INDUSTRY, DEPARTMENT OF COMMERCE, GOVERNMENT OF INDIA, UDYOG BHAVAN, NEW DELHI-110011.

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2 THE RUBBER BOARD REPRESENTED BY THE EXECUTIVE DIRECTOR, THE RUBBER BOARD, P.B.NO.1122, SUB JAIL ROAD, KOTTAYAM-686002.

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3 THE EXECUTIVE DIRECTOR THE RUBBER BOARD, P.B.NO.1122, SUB JAIL ROAD,KOTTAYAM-686002.

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BY ADVS.

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SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL SRI. ABRAHAM JOSEPH MARKOS SC RUBBER BOARD SRI. ISAAC THOMAS SC RUBBER BOARD

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.P(c).No.23237/2017

P.V.ASHA, J.

W.P(C) No. 23237 of 2017-D

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Dated this the 17^th day of September, 2018

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JUDGMENT

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The petitioners, who are working as Junior Assistant Gr.I in the Rubber Board,

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are aggrieved by the denial of promotion from the post of Assistants. According to the petitioners, the respondent Board had been making promotion in all categories above the post of Assistants all along. However, no promotion was made from the post of Junior Assistant to the post of Assistant or from the post of Assistants to that of Section Officers. Therefore, even though Ext.P13 select list was prepared for promotion of Junior Assistants to the post of Assistants on 17.3.2016, wherein the petitioners were included, they did not get promotion. Referring to the orders Exts.P15 to P17 by which promotions were effected to the post of Deputy Rubber Production Commissioner, to that of Development Officers, that of Assistant Development Officers and to the category of Survey Officers and Survey Inspectors and even to the post of Farm Officers, Senior Record Keepers etc. upto 26.12.2016, the petitioners point out that they were subjected to discriminatory treatment. Even though promotion from the post of Section Officer to that of Assistant Secretary was ordered as per Ext.P12 order, since no promotion was made from the post of

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Assistants, promotion chances of the petitioners remained blocked.

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2. The case of the respondents is that the respondent Municipality is not

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W.P(c).No.23237/2017

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making any promotion on the basis of Ext.P14 letter dt.22.2.2017 issued by the Government of India by which certain austerity measures were directed to be implemented in order to minimise the administrative expenditure. The respondent Board was informed that after analysing the mounting administrative expenditure details of the Commodity Boards in the context of declining budgetary appropriations, which is affecting the release of resources for priority schemes, it was decided that no vacant post should be filled up and no promotion should be made without prior approval of the Department. According to the learned counsel for the petitioner, Ext.P14 only provides that there should be prior approval for making promotion and there was no absolute ban for making promotions.

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Respondents 2 and 3 have filed counter affidavit stating that the 1st respondent had alerted the Board as to the increasing administrative expenditure of Commodity Boards in the context of declining budgetary allocations and directed to take appropriate steps; thereupon the 2nd respondent decided to merge various offices under it and also to reallocate various officers in an optimum manner to streamline various functions; after merging various functions and offices of the Board, the service of the Assistant Secretary/Section Officer against the sanctioned strength of Board is not necessary and hence the 2nd respondent decided to keep further promotion in abeyance. It is further stated that the 1st respondent had as per office memorandum dated 13.1.2017 directed to review and restructure autonomous bodies to reduce administrative expenditure; thereafter as per Ext.P14 order it was directed not to fill up any vacant post; it was therefore necessary to optimise the officers after restructuring and to reconsider the sanctioned strength of various posts; several of

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the Assistants who were included in the select list prepared by DPC held on

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W.P(c).No.23237/2017

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17.03.2016 and therefore a supplementary DPC had to be convened in December, 2016 in order to fill up the vacancies of Section Officers; whileso the Government issued directions to restructure the Board and to reduce expenditure; consequent to this various Regional Offices under the Board were merged; Sub Offices/Guest houses were closed, two departments were abolished; activities of the Board are centralised. In the process of re-allocating the existing man-power in an optimum manner, it is not possible to make promotions if there exists excess man-power; once the restructuring is over, the sanctioned strength of each post has to be reviewed; in this process the 2nd respondent has, as per letter dt.10.04.2017, requested for permission of the 1st respondent for abolition of 323 posts under it and in these circumstances it is not possible to make promotions. The learned counsel for the petitioner submits that denial of promotion to Junior Assistants and Assistants alone is discriminatory.

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Though the learned counsel for the petitioners relied on the judgment of the Apex Court in Major General H.M. Singh, VSM v. Union of India & another [2014) 3 SCC 670] and argued that the denial of promotion would amount to violation of their fundamental rights, there are valid reasons for not making promotions. When the prevailing financial condition of the Board does not permit further appointments and when peremptory measures have been suggested by the Government in the matter based on which the respondent Board has found that the posts are already in excess, the petitioners cannot claim that they should be promoted. Though it is true that in the event of filling up the vacancies in the posts of Section Officers their promotions would have been possible, the respondents have explained

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that large number of Assistants included in the DPC list of March, 2016 relinquished

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W.P(c).No.23237/2017

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their promotions and by the time the subsequent DPC list could be operated, Ext.R2(a) and Ext.P14 were issued which resulted in restructuring and surplusage of posts. Therefore, it cannot be said that the action of the respondents was discriminatory. At this stage, when the posts are already found to be excess, the petitioners cannot have any right to insist that they should be promoted and the respondents cannot be directed to fill up the vacancies in such excess posts.

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I have already considered the claim of a Scientific Assistant in the Board for promotion, in W.P(c).No.12474 of 2018, in which she had challenged Ext.P14 order. That writ petition was dismissed as per judgment dated 10.04.2018 observing that no employee under the Board can insist that promotion should be made in the absence of any statutory provision which mandates filling up of any vacancy in a post. When the Government of India found that restructuring was necessary even for the payment of salary to the existing employees of the Boards and directions were issued to the Board to reduce the expenditure and to restructure and rationalise the staff pattern and not to make promotion or fill up vacancies, it cannot be said that the respondent Board adopted any discriminatory attitude towards the petitioners.

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In the above circumstances, I do not find any merit in the writ petition. As and when the Board attains the suitable financial position, the petitioners will be free to approach the Board for promotion.

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Accordingly, the writ petition is dismissed.

Sd/

rtr/

W.P(c).No.23237/2017

APPENDIX

PETITIONER'S/S EXHIBITS:

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EXHIBIT P1	TRUE COPY OF THE GRADATION LIST OF EMPLOYEES AS ON 1-4-2015.
EXHIBIT P2	TRUE COPY OF THE TABLE OBTAINED UNDER THE RTI ACT SHOWING THE QUALIFICATION FOR THE POST OF ASSISTANT.
EXHIBIT P3	TRUE COPY OF THE TABLE SHOWING THE RECRUITMENT RULES FOR THE POST OF SECTION OFFICER.
EXHIBIT P4	TRUE COPY OF THE TABLE SHOWING THE RECRUITMENT RULES FOR THE POST OF ASSISTANT SECRETARY.
EXHIBIT P5	TRUE COPY OF THE REPRESENTATION DATED 20-1- 2017 SUBMITTED BY THE 1ST PETITIONER TO THE 3RD RESPONDENT.
EXHIBIT P6	TRUE COPY OF THE REPRESENTATION DATED 20-1- 2017 SUBMITTED BY THE 2ND PETITIONER TO THE 3RD RESPONDENT.
EXHIBIT P7	TRUE COPY OF THE REPRESENTATION DATED 31-1- 2017 SUBMITTED BY THE 1ST PETITIONER TO THE 3RD RESPONDENT.
EXHIBIT P8	TRUE COPY OF THE REPRESENTATION DATED 31-1- 2017 SUBMITTED BY THE 2ND PETITIONER TO THE 3RD RESPONDENT.
EXHIBIT P9	TRUE COPY OF THE REPRESENTATION DATED 4-4- 2017 SUBMITTED BY THE 1ST PETITIONER TO THE 3RD RESPONDENT.
EXHIBIT P10	TRUE COPY OF THE REPRESENTATION DATED 4-4- 2017 SUBMITTED BY THE 2ND PETITIONER TO THE 3RD RESPONDENT.
EXHIBIT P11	TRUE COPY OF THE REPRESENTATION DATED 4-4- 2017 SUBMITTED BY THE 3RD PETITIONER TO THE 3RD RESPONDENT.
EXHIBIT P12	TRUE COPY OF THE OFFICE MEMORANDUM DATED 13- 12-2016
EXHIBIT P13	TRUE COPY OF THE PROCEEDINGS DATED 17-3- 2016.
EXHIBIT P14	TRUE COPY OF THE LETTER DATED 22-2-2017.
EXHIBIT P15	TRUE COPY OF THE OFFICE MEMORANDUM DATED 13-

W.P(c).No.23237/2017

12-2016.

EXHIBIT P16 TRUE COPY OF THE OFFICE MEMORANDUM DATED 1612-2016. EXHIBIT P17 TRUE COPY OF THE OFFICE MEMORANDUM DATED 1912-2016. EXHIBIT P18 TRUE COPY OF THE OFFICE MEMORANDUM DATED 8- 12-2016. EXHIBIT P19 TRUE COPY OF THE OFFICE MEMORANDUM DATED 2612-2016. EXHIBIT P20 TRUE COPY OF THE OFFICE MEMORANDUM DATED 2712-2016. EXHIBIT P21 TRUE COPY OF THE OFFICE MEMORANDUM DATED 9- 12-2016.

Sreelekha S v. Union of India

Case brief

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Sreelekha S v. Union of India

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