Partly allowed

Selvakumar N. v. Kerala State Financial Enterprises Limited (Ksfe)

Kerala HC29 Nov 2021WP(C)/11923/2020

Case brief

AI extract

What is this about?

This Writ Petition challenged an order treating a second request for temporary promotion relinquishment as a permanent one, barring future promotions. The Court held such treatment was unsustainable. It quashed the barring portion and directed the employer to reject the second request but offer promotion eventually.

What did the court decide?

Impugned order treating application as permanent relinquishment and barring future promotion set aside. Petitioner to be offered promotion when vacancy arises.

Selvakumar N. Vs Kerala State Financial… — Pension and Retirement Benefits | Kerala HC (2021)

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W.P(C).11923/2020

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE SUNIL THOMAS

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MONDAY, THE 29^TH DAY OF NOVEMBER 2021 / 8TH AGRAHAYANA, 1943

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WP(C) NO. 11923 OF 2020

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PETITIONER/S:

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SELVAKUMAR N., AGED 53 YEARS S/O. LATE NADARAJAN CHETTIYAR, AMBALATHARA HOUSE, ARUNAPURAM P O, PALA, KOTTAYAM(DISTRICT)

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BY ADVS. LIJI.J.VADAKEDOM SMT.REXY ELIZABETH THOMAS SRI.RAJEEV JYOTHISH GEORGE

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RESPONDENT/S:

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1 KERALA STATE FINANCIAL ENTERPRISES LIMITED (KSFE) REPRESENTED BY ITS MANAGING DIRECTOR, CORPORATE OFFICE, BHADRATHA, THRISSUR-680020.

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2 THE MANAGING DIRECTOR, KERALA STATE FINANCIAL ENTERPRISES LTD, CORPORATE OFFICE, BHADRATHA, THRISSUR-680020.

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3 DGM( P AND HR) HEAD OFFICE, KERALA STATE FINANCIAL ENTERPRISES LTD, THRISSUR-680020.

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4 THE BRANCH MANAGER, KERALA STATE FINANCIAL ENTERPRISES, PALA II BRANCH, ARUNAPURAM P O, PALA- 686574.

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BY ADVS. SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN SRI.KURYAN THOMAS SRI.PAULOSE C. ABRAHAM,

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W.P(C).11923/2020

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SC: SRI.M.GOPIKRISHNAN NAMBIAR

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.11.2021, THE COURT ON 29.11.2021 DELIVERED THE FOLLOWING:

W.P(C).11923/2020

'CR'

JUDGMENT

The writ petitioner joined the service of the first respondent/Kerala State Financial Enterprises Ltd. ('KSFE' in short) on 06.11.2004 as Junior Assistant. He was promoted thereafter and at present, he is now working as Assistant Manager (Non Cadre) at Pala-II Branch. His elder son aged 17 years is a differently abled child with 75% disability and is handicapped by Autism (Attention Deficit Hyper Active Disorder (ADHD)). Since the child required constant attention of the petitioner and his wife, petitioner submitted Ext.P3 representation before the KSFE seeking favourable posting on promotion, at some station near his residence. While so, he was issued with Ext.P4 promotion order dated 29.11.2016. He submitted a representation seeking favourable posting. Consequently, by Ext.P6 transfer order, he was posted at Kothamangalam, which was 60 kms away from the residence of the petitioner. Lamenting that the said posting also caused much inconvenience to him, by Ext.P7 communication dated 26.12.2016, he requested for temporary relinquishment of his promotion for a period of one year or as and when vacancy arises in a nearby branch, whichever was earlier. This was accepted by Ext.P8 memo dated 03.01.2017. Immediately, on completion of one year period, by Ext.P9, the petitioner was promoted and posted at Piravom. Again, claiming that, he was unable

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to accept the posting at Piravom, which was about 40kms away from his residence, the petitioner submitted Ext.P10 representation requesting to extend the period of relinquishment for promotion, for a further period of two years from 29.12.2017. By Ext.P11 order dated 16.03.2018, he was informed that, relinquishment of promotion was permitted only once in service, as per Rule 38 of KSSR. Hence, his request for extension of relinquishment for a further period could not be considered and he was informed that, his relinquishment for promotion will be treated as permanent relinquishment. He was also informed that, he will not be considered for promotion as Assistant Manager in future.

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Aggrieved by Ext.P11, to the extent of treating his application as one for permanent relinquishment and informing him that, he will not be considered for promotion as Assistant Manager in future, petitioner has approached this Court. The contention of the writ petitioner was that, KSFE was not justified in treating his application for temporary relinquishment for a limited period of two years as an application for permanent relinquishment and thereby, deny him his due promotion, forever. The reliefs sought in the Writ Petition was to quash Ext.P11 and to direct the first respondent to consider Ext.P12 claim for promotion to the post of Assistant Manager.

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The respondent/KSFE appeared and filed counter affidavit. It was stated that, petitioner was entitled to make a temporary relinquishment only once during the tenure, by virtue of GO(P).No.39/91/P & ARD dated 07.12.1991 produced along with the counter affidavit as Ext.R1(a). As per the above guidelines, temporary relinquishment from one grade to another can be permitted only once in the service of an officer. The petitioner was considered for promotion to permanent vacancy and an employee can withdraw the relinquishment of promotion, only if he has been offered a provisional promotion. Guidelines further stated that the employees have been relinquishing promotion for short period for the same grade, which have resulted in severe administrative inconveniences. To tide over that difficulty, the Government had issued Ext.R1(a) guidelines. As per the guidelines, temporary relinquishment from one grade to another shall be permitted only once in the service of an officer.

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Heard the learned counsel for the writ petitioner and the learned Standing Counsel for the KSFE.

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Basic facts are not in dispute. The short question that arises for consideration is whether Ext.P11 order, treating Ext.P10 application for temporary relinquishment for a period of two years as one for relinquishment of promotion, permanently, is sustainable. It

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is evident that, the respondent is relying on Ext.R1(a), Government Order dated 07.12.1991. It was issued as a clarification to Rule 38 of KSSR. Rule 38 with its explanation provides as follows:

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“Relinquishment of rights by members -

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Any person may, in writing, relinquish any right or privilege to which he may be entitled under these rules or the Special Rules, if, in the opinion of the Appointing Authority, such relinquishment is not opposed to public interest; and nothing contained in these rules or the Special Rules shall be deemed to require the recognition of any right or privilege to the extent to which it has been so relinquished.

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Explanation:- the relinquishment of the right for promotion under this rule shall entail loss of seniority and a relinquishment of the right for promotion shall not be permissible unless such relinquishment entails loss of seniority”

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A close perusal of Rule 38 clearly shows that the Rule does not refer to either permanent relinquishment or a temporary relinquishment. No such words are used in the above Rule. It clearly permits a person to relinquish any right of privilege, to which, he may be entitled under the Special Rules by request in writing. The

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explanation to the above Rule refers to the consequences of such relinquishment, that, on relinquishment of such right for promotion, it shall entail loss of seniority and the relinquishment of the right for promotion shall not be permissible, unless such relinquishment entails loss of seniority.

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Ext.R1(a) clearly indicates the reason that prompted the Government to issue the G.O. dated 07.12.1991. It states that, the existing Rules/guidelines do not limit the number of times one can relinquish the promotion temporarily. It has resulted in the employees relinquishing promotion for a short period to the same grade, a number of times to suit their convenience. Such temporary piece-meal relinquishment by the same individual on a number of occasions, causes administrative inconvenience. It has therefore become necessary to limit the number of times one can relinquish the promotion temporarily and one can stipulate a reasonable minimum period for such temporary relinquishment. The order, inter alia, provided that, any relinquishment shall entail loss of seniority to the extent relinquished. It also provided that, temporary relinquishments shall be for a minimum period of one year. Yet another provision was that, temporary relinquishment from one grade to another shall be permitted only once in the service of an officer. It also provided that, those who relinquish the promotions whether permanently or for a

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specified period, shall not be entitled to the benefit of time bound promotion from existing grades, if applicable.

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The above G.O. clearly shows that, it has introduced a notional division of relinquishment as temporary as well as permanent, though Rule 38 does not refer to any such distinction. It seems to have been created by the said G.O., out of administrative exigencies. Whether in the light of the wording of Rule 38, G.O. is legally sustainable or not, is not considered, that being beyond the scope of this Writ Petition and in the absence of any challenge to Ext.R1(a).

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Ext.R1(a) is so clear that, it provides that, temporary relinquishment shall be for a minimum period of one year and such relinquishment from one grade to another shall be permitted only once in the service of an officer. In the light of the above, since the petitioner has opted once, by virtue of Ext.P7, second relinquishment evidenced by Ext.P10 was not legally sustainable and hit by Ext.R1(a). To that extent, the stand taken by the KSFE seems to be justified. However, Ext.P11 shows that, apart from rejecting the second request for temporary relinquishment for two years, Ext.P11 proceeded further, to hold that, it will be treated as a permanent relinquishment and the petitioner will not be entitled for any promotion in future. This, to my mind, is neither contemplated under

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the Rule nor could be the natural consequence of Ext.R1(a). When Ext.R1(a) confines the number of choice of relinquishment to one, any further request for another temporary relinquishment is not legally sustainable. In that case, the Rule did not specify, nor the G.O. empower, the KSFE to treat an application for temporary relinquishment as one for permanent relinquishment, for which, there was no request also. Hence, the only option that was available to the KSFE was to reject the application for second temporary relinquishment. This would have given an option to the employee either to decide for a permanent relinquishment or for acceptance of the promotion order. To that extent, Ext.P11 does not appear to be legally correct and is liable to be set aside.

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The learned counsel for the writ petitioner, to advance his contention, relied on the Division Bench decision reported in Joseph v. State of Kerala (1987 KHC 529) . That was a case wherein, a teacher relinquished his promotion much prior to 1982. Thereafter, he challenged the promotion given to other in the interregnum of relinquishment. Rejecting the claim, the Division Bench noted that, the explanation to Rule 38 was introduced only in the year 1982, long after the applicant had relinquished his right for promotion. The amendment introducing the relinquishment did not have any retrospective effect. Answering the question whether, still, it will

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affect the seniority, the Division Bench held that, the explanation which provides that, the relinquishment of right of promotion shall entail loss of seniority, only clarifies the position flowing from Rule 38. The same would have been the consequence even without the aforesaid explanation. Therefore, the Division Bench concluded that the fact that, explanation to Rule 38 was added only after the year 1982, does not come to the aid of the appellant. The above decision has no application to the facts of this case.

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It is to be noted that, it is upto the petitioner to decide whether he should relinquish his right forever or choose the promotion. Once it is brought to the notice that, under Ext.R1(a), he is not entitled to exercise the option more than once, the application should have been rejected. Hence, I am inclined to set aside the latter portion of Ext.P11, by which, the petitioner was informed that, application will be treated as permanent relinquishment and that, he will not be considered for promotion as Assistant Manger in future. Natural consequence will be to issue fresh order of promotion as and when the vacancy arises.

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In the light of the conclusion arrived at now, the impugned order is liable to be set aside to the above limited portion. However, the petitioner shall be offered promotion, when it becomes due. It will be up to the petitioner, to exercise his option, either to accept it

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W.P(C).11923/2020

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or seek permanent exemption. With these observations, the Writ Petition is liable to be allowed in part.

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In the result, Writ Petition is allowed in part. Ext.P11 to the extent of treating Ext.P10 as a permanent relinquishment and further direction that, petitioner will not be entitled for promotion as Assistant Manager in future stands set aside. This will have the effect of rejecting Ext.P10 application for temporary relinquishment. KSFE shall offer promotion to the petitioner when it becomes due. If he accepts the promotion, the seniority of the persons, who have been promoted at the interregnum, will not be affected.

Sd/-

SUNIL THOMAS

JUDGE

Sbna/

W.P(C).11923/2020

APPENDIX OF WP(C) 11923/2020

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PETITIONER EXHIBITS

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EXHIBIT P1	THE COPY OF THE MEDICAL BOARD CERTI DATED 20.05.2009	FICATE
EXHIBIT P1(a)	THE COPY OF THE CERTIFICATE 23.5.2012 ISSUED FROM JEWEL OCCUPA THERAPY CENTRE FOR CHILDREN.	DATED TIONAL
EXHIBIT P2	THE COPY OF THE GO(P) NO.19/2011 28.06.2011.	DATED
EXHIBIT P2(a)	THE COPY OF THE CIRCULAR 13532/AR/13(2)/2020 DATED 1.12.2010.	NO.
EXHIBIT P2(b)	THE COPY OF THE OFFICE MEMORANDUM	DATED
	6.6.2014 ISSUED BY THE GOVERNME INDIA.	NT OF
EXHIBIT P3	THE COPY OF THE REPRESENTATION 3.3.2016 SUBMITTED BY THE PETITIONER	DATED .
EXHIBIT P3(a)	THE COPY OF THE REPRESENTATION 17.10.2016 SUBMITTED BY THE PETITION	DATED ER.
EXHIBIT P4	THE COPY OF THE PROMOTION ORDER 29.11.2016 ISSUED BY THE 2ND RESPOND	DATED ENT.
EXHIBIT P5	THE COPY OF THE REPRESENTATION	DATED
	7.12.2016 SUBMITTED BY THE PETI BEFORE THE 2ND RESPONDENT.	TIONER
EXHIBIT P6	THE COPY OF THE ORDER DATED 14.1 ISSUED BY THE 2ND RESPONDENT.	2.2016
EXHIBIT P7	THE COPY OF THE TEMPORARY RELINQUI DATED 26.12.2016 SUBMITTED BY PETITIONER.	SHMENT THE
EXHIBIT P8	THE COPY OF THE MEMO DATED 3/1/2017 BY THE 2ND RESPONDENT.	ISSUED

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EXHIBIT P9 THE COPY OF THE ORDER DATED 29.12.2017 BY WHICH PETITIONER WAS PROMOTED AND POSTED AT PIRAVOM. EXHIBIT P10 THE COPY OF THE REPRESENTATION DATED 15.1.2018 SUBMITTED BY THE PETITIONER. EXHIBIT P11 THE COPY OF THE ORDER NO.49938 DATED 16.03.2018 PASSED BY THE 2ND RESPONDENT. EXHIBIT P12 THE COPY OF THE REPRESENTATION DATED 26.12.2019 SUBMITTED BY THE PETITIONER FOR PROMOTION.

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RESPONDENT EXHIBITS EXHIBIT R1(A) A TRUE COPY OF GOVERNMENT ORDER BEING G.O. (P) NO.39/91/P & ARD DATED 07.12.1991.

Selvakumar N. v. Kerala State Financial Enterprises Limited (Ksfe)

Case brief

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Selvakumar N. v. Kerala State Financial Enterprises Limited (Ksfe)

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