The High Court dismissed petitions challenging an Administrative Tribunal order regarding promotion portfolios. The Court held Machine Operator posts remain outside the Kerala Industries Subordinate Service rules and upheld the Tribunal's conclusion that the first respondent was eligible for transfer promotion after qualifying post-vacancy.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE GOPINATH P.
WEDNESDAY, THE 18TH DAY OF NOVEMBER 2020 / 27TH KARTHIKA, 1942
OP(KAT).No.158 OF 2017(Z)
AGAINST THE ORDER IN OA 8/2016 DATED 07-04-2017 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM
PETITIONER/4TH RESPONDENT:
RENJITH RAJU MACHINE OPERATOR (C.F.S.C.), COMMON FACILITY SERVICE CENTRE, CHANGANACHERRY INDUSTRIAL NAGAR P.O., KOTTAYAM-686106, KERALA.
BY ADVS. SRI.MADHU RADHAKRISHNAN SRI.S.VISHNU
RESPONDENTS/APPLICANT & RESPONDENTS 1 TO 3:
1 S. SYAM AGED 35 YEARS, S/O.K.SASIDHARAN, FOREMAN (TOOL ROOM), COMMON FACILITY SERVICE CENTRE, MANJERI, PIN-676122, RESIDING AT SYAM NIVAS, MANGAD NAGAR, MANGAD P.O., KOLLAM, KERALA-691015.
2 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, INDUSTRIES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, KERALA-695001.
R1 BY ADV. SRI.S.ANEESH R1 BY ADV. SRI.P.NANDAKUMAR R2-4 BY GOVERNMENT PLEADER
OTHER PRESENT:
SRI. T. RAJASEKHARAN NAIR- SR. G.P.
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 1211-2020, ALONG WITH OP(KAT).289/2018(Z), THE COURT ON 18-11-2020 DELIVERED THE FOLLOWING:
OP (KAT) Nos.158/2017 & 289/2018
-2-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE GOPINATH P.
WEDNESDAY, THE 18TH DAY OF NOVEMBER 2020 / 27TH KARTHIKA, 1942
OP(KAT).No.289 OF 2018
AGAINST THE ORDER DATED 07-04-2017 IN OA 8/2016 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM
PETITIONERS/RESPONDENTS 1 TO 3:
1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, INDUSTRIES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM,KERALA-695001.
3 DEPARTMENT PROMOTION COMMITTEE (LOWER) INDUSTRIES DEPARTMENT, REPRESENTED BY ITS CONVENER AND DIRECTOR OF INDUSTRIES AND COMMERCE, VIKAS BHAVAN, THIRUVANANTHAPURAM-695033.
SRI. T. RAJASEKHARAN NAIR- SR. G.P.
RESPONDENTS/APPLICANT & RESPONDENT No.4:
1 S.SYAM
S/O.K.SASIDHARAN, FOREMAN (TOOL ROOM), COMMON FACILITY SERVICE CENTRE,MANJERI-676122, RESIDING AT SYAM NIVAS, MANGADU NAGAR, MANGADU.P.O,KOLLAM-691015.
2 RENJITH RAJU MACHINE OPERATOR GRADE II, COMMON FACILITY SERVICE CENTRE, CHANGANASSERY INDUSTRIAL NAGAR.P.O, KOTTAYAM-686106.
R1 BY ADV. SRI.P.NANDAKUMAR R2 BY ADV. SRI.MADHU RADHAKRISHNAN
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 12-11-2020, ALONG WITH OP(KAT).158/2017(Z), THE COURT ON 18-11-2020 DELIVERED THE FOLLOWING:
OP (KAT) Nos.158/2017 & 289/2018
-3-
J U D G M E N T
Dated this the 18th day of November, 2020.
Gopinath, J:
These original petitions have been filed by challenging order dated 07-04-2017 in OA No.8/2016 on the file of the Kerala Administrative Tribunal at Thiruvananthapuram. OP (KAT) No.158/2017 has been filed by the 4th respondent in OA No.8/2016 while OP (KAT) No.289/2018 has been filed by the State and its officers who were respondents 1 to 3 in that original application. The parties are referred to as they appear in OP (KAT) No.158/2017 and documents referred to are referred to as they are marked in that original petition unless otherwise specified.
OP (KAT) Nos.158/2017 & 289/2018
-4-
Departmental Promotion Committee (DPC) met and a select list was published including the name of the 1st respondent. Aggrieved by the inclusion of the 1st respondent, the petitioner filed a representation. He also moved the Kerala Administrative Tribunal through OA No.1121/2014 which was disposed of directing consideration of that representation. The petitioner contended that the 1st respondent was not eligible to be considered for appointment, by transfer, as Foreman (Tool Room) on account of the fact that he has not completed probation in the post of Junior Co-operative Inspector which, it is not disputed is a feeder category for the post of Foreman (Tool Room), as the said post is a post borne on the Kerala Industries Subordinate Service. The 1st petitioner being aggrieved by the non-compliance of the order in OA No.1121/2014 filed a contempt of court case before the Tribunal as CP No.193/2015. That contempt petition was closed on the Government intimating the Tribunal that a decision had already been taken to cancel the earlier select list and also to include the petitioner in the new select list for the post of Foreman (Tool Room). The 1st respondent, therefore, approached the Tribunal through OA No.8/2016 being aggrieved by the decision to cancel the select list.
OP (KAT) Nos.158/2017 & 289/2018
-5-
Machine Operator Gr-II which is not a post which is included or recognised as a post borne on the Kerala Industries Subordinate Service, 2011. The petitioner, on the other hand, contended that the 1st respondent was not eligible to be considered for the post of Foreman (Tool Room) on account of the fact that he had entered service in the Industries Department as Lower Division Clerk on 01-02-2006, was promoted as Upper Division Clerk on 18-11-2018 and was later appointed as Junior Co-operative Inspector (by transfer) on 09-03-2011 in which post his probation was declared only with effect from 10-032012. It is therefore submitted that on the date of occurrence of the vacancy of Foreman (Tool Room) which is 01-04-2011 the 1st respondent was not eligible to be considered.
OP (KAT) Nos.158/2017 & 289/2018
-6-
purpose of analysing as to whether the petitioner can have any claim for being a member of the Kerala Industries Subordinate Service. The Government order dated 06-05-2014 reads as follows;
“Government have received requests from the employees appointed as Machine Operator Grade I in the Common Facility Service Centre through Kerala Public Service Commission for considering them for further promotions in the department as provided in the Special Rules, which is being denied to them for nearly one decade for the reason that the posts are not included in the Special Rules for Kerala Industries Subordinate Service Rules issued as per G.O. 1st cited. They have approached the Hon'ble Kerala Administrative Tribunal also for this purpose. The Director of Industries & Commerce has expressed their inability in the matter since the post is not included in the Special Rules.
Government have examined the matter and found that the posts of Machine Operator Grade I & Machine Operator Grade II are sanctioned to the Common Facility Service Centres under the relevant order issued as per G.O (P) No.85/2011/Fin Dated 26-02-2011 also. Though these posts were not included in the Special Rules, the post of Machine Operator, CFSC is included in the Rules, without specific categorisation. The amendments to Special Rules for Kerala Industries Subordinate Service Rules is being processed in Government.
In the circumstances, Government are pleased to clarify that the posts of Machine Operator Grade-I & Machine Operator Grade II in the Common Facility Service Centres under the Department of Industries and Commerce are part of the Kerala Industries Subordinate Service. The incumbents appointed in the cadres shall be eligible for all the service benefits, provided in the Special Rules for Kerala Industries Subordinate Service. This has the concurrence of Kerala Public Service Commission and this shall be subjected to the finalzation of the proposed amendment of Special Rules for Kerala Industries Subordinate Service Rules.”
A reading of the Government order leads to the conclusion that the post of Machine Operator Gr-I and Machine Operator Gr-II in the Common
OP (KAT) Nos.158/2017 & 289/2018
-7-
Facility Service Centre under the Department of Industries and Commerce will be included as posts in the Kerala Industries Subordinate Service only upon the amendment to the Special Rules for the Kerala Industries Subordinate Service. This, in our view, is clear from the last line of paragraph 2 of the aforesaid Government order which states that the amendments to Special Rules to Kerala Industries Subordinate Service Rules are being processed in the Government. Though the 3rd paragraph of aforesaid Government order is not happily worded we have no hesitation to conclude that what was intended was that the post of Machine Operator Gr-I and Machine Operator Gr-II in the Common Facility Service Centres will be brought in the purview of Kerala Industries Subordinate Service after the amendment of the Special Rules. We are informed that the Special Rules for the Kerala Industries Subordinate Service has not been amended so far including within its purview the posts of Machine Operator Gr-I and Machine Operator GrII. Thus it is clear that the said posts do not form part of the Kerala Industries Subordinate Service in which case it is also clear that persons holding the said post cannot aspire to be appointed as Foreman (Tool Room) by transfer in terms of the provisions contained in the Special Rules for the Kerala Industries Service, 2011. Even if we were to consider the submission of the learned counsel for the petitioner that AnnexureA8 Government Order dated 06-05-2018 is in the nature of clarification,
OP (KAT) Nos.158/2017 & 289/2018
-8-
that clarification has been issued only on 06-05-2015 and we must therefore hold that it can only be prospective. That being the position the petitioner cannot aspire to be considered for the post of Foreman (Tool Room).
OP (KAT) Nos.158/2017 & 289/2018
-9-
“iA) Preparation of select list subsequent to the occurrence of vacancy.- When a select list is prepared subsequent to the occurrence of a vacancy, no person who was not qualified for inclusion in the select list at the time of occurrence of the vacancy shall be included in the select list for appointment against that vacancy.
Note.- If there are no qualified persons for promotion to a post on the date of occurrence of the vacancy, the person who gets qualified first thereafter, shall be considered for promotion to that post:
Provided that where the Special Rules in respect of the post provide that direct recruitment shall be resorted to in the absence of qualified candidates for promotion on the date of occurrence of the vacancy, recruitment to the post shall be made accordingly."
By virtue of the Note to Rule 28 (iA) even if there was no one qualified on the date of occurrence of the vacancy, the person who became first qualified can be considered for appointment by transfer or by promotion. It is not seriously in dispute that even if we were to take that the petitioner and the 1st respondent were qualified (the 1st respondent being qualified on account of the clarification issued by the Government) the person who qualified earlier would be the 1st respondent. As we have already found that the clarification issued by the Government regarding the status of the Machine Operator Gr-I & Machine Operator Gr-II can at best operate only prospectively i.e. on or with effect from 06-05-2015 the 1st respondent would be the person who qualified first as his probation was duly declared on 10-03-2012.
In that view of the matter, we have no hesitation to hold that the 1st respondent was entitled to be considered for appointment by transfer as
OP (KAT) Nos.158/2017 & 289/2018
-10-
Foreman (Tool Room) and the direction issued by the Tribunal warrants no interference. The Original Petitions fail and they are accordingly
dismissed. No costs.
(Sd/-)
A.M. SHAFFIQUE JUDGE
(Sd/-)
GOPINATH P., JUDGE
AMG
OP (KAT) Nos.158/2017 & 289/2018
-11-
APPENDIX OF OP(KAT) 158/2017
PETITIONER'S/S EXHIBITS:
| EXHIBIT P1 | TRUE COPY OF THE COMMON JUDGMENT DATED 07-04-2017 |
|---|---|
| IN O.A.NO.8/2016 & C.P.NO.193/2015 IN | |
| O.A.NO.1121/2014 FILED BEFORE THE KERALA | |
| ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM. |
| EXHIBIT P3 | TRUE COPY OF THE REPLY STATEMENT FILED BY THE |
|---|---|
| PETITIONER/4TH RESPONDENT IN O.A.NO.8/2016. |
OP (KAT) Nos.158/2017 & 289/2018
-12-
APPENDIX OF OP(KAT) 289/2018
PETITIONER'S/S EXHIBITS:
| EXHIBIT P1 | TRUE COPY OF THE OA(EKM)08/2016 ALONG WITH ANNEXURES |
|---|---|
| ANNEXURE A1 | TRUE COPY OF SPECIAL RULES FOR THE KERALA INDUSTRIES SUBORDINATE SERVICE, 2001. |
| ANNEXURE A2 | TRUE COPY OF SPECIAL RULES FOR THE KERALA INDUSTRIES, 2011. |
| ANNEXURE A3 | TRUE COPY OF THE ORDER DATED 11/09/2013 IN O.A.NO.1960 OF 2013. |
| ANNEXURE A4 | TRUE COPY OF SELECT LIST DATED 20/05/2014. |
| ANNEXURE A5 | TRUE COPY OF ORDER DATED 02/07/2014 ISSUED BY THE 2ND RESPONDENT. |
| ANNEXURE A6 | TRUE COPY OF ORDER DATED 04/12/2014 IN O.A.NO.1121 OF 2014. |
| ANNEXURE A7 | TRUE COPY OF REPRESENTATION DATED 13/04/2015 SUBMITTED BY THE APPLICANT. |
| ANNEXURE A8 | TRUE COPY OF ORDER DATED 06/05/2015 ISSUED BY THE 1ST RESPONDENT. |
| ANNEXURE A9 | TRUE COPY OF SELECT LIST DATED 17/11/2015. |
| ANNEXURE A10 | TRUE COPY OF ORDER DATED 20/11/2015 ISSUED BY THE 2ND RESPONDENT. |
| ANNEXURE A11 | TRUE COPY OF THE ORDER DATED 21/12/2015 IN CP(C) NO.193 OF 2015. |
| EXHIBIT P2 | TRUE COPY OF REPLY STATEMENT FILED ON BEHALF OF THE 1ST PETITIONER HEREIN. |
| EXHIBIT P3 | TRUE COPY OF REPLY STATEMENT FILED ON BEHALF OF THE 2ND PETITIONER HEREIN. |
| EXHIBIT P4 | TRUE C0PY OF THE REPLY STATEMENT FILED BY 2ND RESPONDENT HEREIN. |
| ANNEXURE R4(A) | TRUE COPY OF PROBATION DECLARATION ORDER OF THE 4TH RESPONDENT NO.ED3/20092/08 DATED 25/02/2009. |
| ANNEXURE R4(B) | TRUE COPY OF THE APPOINTMENT ORDER OF MR.P.T.GOPINATHAN, NO.ED3/8978/10 DT. 20/10/2010. |
OP (KAT) Nos.158/2017 & 289/2018
-13-
ANNEXURE R4(C) TRUE TYPED CLEAR COPY OF ANNEXURE R-4(2). ANNEXURE R4(D) TRUE COPY OF ORDER NO.ED3/8978/110 DATED 15/11/2011 INVITING APPLICATION FROM ELIGIBLE WILLING HANDS.
ANNEXURE R4(E) TRUE COPY OF WILLINGNESS APPLICATION SUBMITTED BY THE 4TH RESPONDENT.
ANNEXURE R4(F) TRUE COPY OF APPENDIX IV OBTAINED UNDER RTI ACT. ANNEXURE R4(G) TRUE COPY OF FORMAT SUBMITTED BY 2ND RESPONDENT TO DPC (LOWER).
ANNEXURE R4(H) TRUE COPY OF COMMUNICATION FROM APPEAL AUTHORITY UNDER RTI ACT OF INDUSTRIES DEPARTMENT.
ANNEXURE R4(I) TRUE COPY OF REPRESENTATION DATED 26/06/2014 SUBMITTED BY THE 4TH RESPONDENT.
ANNEXURE R4(J) TRUE COPY REPRESENTATION DATED 13/01/2015 SUBMITTED TO 2ND RESPONDENT BY 4TH RESPONDENT. ANNEXURE R4(K) TRUE COPY OF ORDER DATED 07/03/2014 IN O.A.NO.513/14.
ANNEXURE R4(L) TRUE COPY OF G.O.(MS) NO.54/2015/ID DATED 06/05/2015.
ANNEXURE R4(M) TRUE COPY OF ORDER IN C.P.193/2015 IN O.A.NO.1121/2014.
ANNEXURE R4(N) TRUE COPY OF G.O.(P) NO.160/77/GAD DATED 02/06/1977 ON RULE 28(IA). ANNEXURE R4(O) TRUE COPY OF ORDER IN O.A.2553/2013 DATED 24/02/2015.
EXHIBIT P5 TRUE COPY OF THE REJOINDER FILED BY 1ST RESPONDENT HEREIN TO THE REPLY STATEMENT FILED BY THE 1ST,2ND AND 4TH RESPONDENTS.
ANNEXURE A12 TRUE COPY OF THE PROCEEDINGS DATED 18/06/1977. ANNEXURE A13 TRUE COPY OF THE RELEVANT EXTRACT OF 10TH PAY REVISION ORDER. ANNEXURE A14 TRUE COPY OF GOVERNMENT ORDER DATED 27/10/1993. ANNEXURE A15 TRUE COPY OF THE LETTER DATED 14/03/2013 OF THE 2ND RESPONDENT. ANNEXURE A16 TRUE COPY OF THE LETTER DATED 16/05/2013 OF THE 1ST RESPONDENT.
OP (KAT) Nos.158/2017 & 289/2018
-14-
| EXHIBIT P6 | TRUE COPY OF FILED BY THE |
THE 2ND |
ADDITIONAL REPLY STATEMENT RESPONDENT HEREIN. |
|---|---|---|---|
| ANNEXURE R4(P) | TRUE COPY OF 06/02/2008. |
ORDE | R NO.ED3/17550/07 DATED |
| ANNEXURE R4(Q) | TRUE COPY OF 28/02/2008. |
THE | ORDER NO.B1.1161/2007 DATED |
| ANNEXURE R4(R) | TRUE COPY OF 26/02/2007 P MACHINE OPER RS.6680-RS.1 |
THE ROMOT ATOR, 0.790 |
ORDER NO.ED3/5970/06 DATED ING MR.A.C.VASUKUTTAN AS CFSC IN THE SCALE OF PAY OF /-. |
| ANNEXURE R4(S) | TRUE COPY OF DATED 10/08/ |
THE 2015 |
COMMUNICATION NO.RTI/13055/15 RECEIVED UNDER RTI ACT. |
| ANNEXURE R4(T) | TRUE COPY OF | THE | ORDER DATED 20/11/2015. |
| EXHIBIT P7 | TRUE COPY OF 1ST RESPONDE REPLY STATEM |
ADDI NT HE ENT F |
TIONAL REJOINDER FILED BY THE REIN TO REPLY THE ADDITIONAL ILED BY THE 4TH RESPONDENT |
| EXHIBIT P8 | A TRUE COPY O.A.NO.8/201 |
OF TH 6. |
E ORDER DATED 07.04.2017 IN |
| EXHIBIT P9 | A TRUE COPY O.A.NO.8/201 |
OF TH 6. |
E ORDER DATED 07.04.2017 IN |
| ANNEXURE MA1 | TRUE COPY OF | THE | ORDER DATED 04/01/2016. |
| ANNEXURE MA2 | TRUE COPY OF | THE | ORDER DATED 01/02/2016. |
| ANNEXURE MA3 | TRUE COPY OF O.A.NO.1121/ |
THE 2014. |
ORDER DATED 04/12/2014 IN |
| ANNEXURE MA4 | TRUE COPY OF C.P.NO.193/2 |
THE 015. |
ORDER DATED 08/01/2016 IN |
| ANNEXURE MA5 | TRUE COPY OF 15/11/2011. |
THE | ORDER ED3/8978/10 DATED |
| ANNEXURE MA6 | TRUE COPY OF | APPE | NDIX IV. |
| ANNEXURE MA7 | TRUE COPY OF | FORM | AT TO DPC. |
| ANNEXURE MA8 | TRUE COPY OF DTD.02/06/19 |
G.O. 77. |
(P) NO.160/77/GAD |
3 issues framed by the court
Whether Machine Operator Grade-I and Grade-II posts in Common Facility Service Centres are included in the Kerala Industries Subordinate Service for promotion purposes.
Whether the resolution regarding inclusion of Machine Operator posts in the service is prospective or retrospective.
Whether the first respondent was eligible for consideration for promotion to Foreman (Tool Room) after completing probation subsequent to the vacancy.
RENJITH RAJU
STATE OF KERALA
S. SYAM
DIRECTOR OF INDUSTRIES COMMERCE
DEPARTMENTAL PROMOTION COMMITTEE
A.M. SHAFFIQUE
GOPINATH P.
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
