IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 2887 of 2009()
1. RAMESH A, AGED 43 YEARS,
... Petitioner
Vs
1. IRCON INTERNATIONAL LTD
... Respondent
2. THE DEPUTY GENERAL MANAGER /HRM
3. THE KERALA STATE ELECTRICITY BOARD
For Petitioner :SRI.A.ANILKUMAR
For Respondent :SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDI
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice P.BHAVADASAN
Dated :21/12/2009
O R D E R
K.BALAKRISHNAN NAIR & P.BHAVADASAN, JJ.
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WA No.2887 of 2009
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Dated 21st December 2009
Judgment
Balakrishnan Nair, J.
The writ petitioner is the appellant. He was an employee,
working under the KSEB. When the 1st respondent invited
applications for appointment to the post of Joint General
Manager (Electrical), he submitted an application. His
application was considered by the 1st respondent and he was
offered employment as per Ext.P1 order dated 27.12.2007.
One of the conditions contained in Ext.P1 order was the
following :
“10(c) NOC from your last employer in case you are
employed in a Govt. Undertaking/Department/Autonomous
body for your recruitment in IRCON. Please also note that
you will have to produce an order of acceptance of your
resignation issued by the competent authority in your
organisation at the time of your joining IRCON if you are
working in Govt./PSU.”
On receipt of Ext.P1, the appellant submitted a representation
on 27.03.2008, praying that he may be allowed to join the 1st
respondent on deputation basis, keeping his lien in KSEB. The
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first respondent responded to that representation by Ext.P2 dated
21.5.2008, agreeing to appoint him on deputation basis, initially for a
period of two years, extendable by one more year. The said offer
was subject to the condition that NOC from his employer should be
produced. The appellant accepted the offer made as per Ext.P2 by
his letter dated 11.6.2008, it is submitted. Later, he was informed by
Ext.P3 communication dated 4.7.2008, issued by the 1st respondent
stating that he has been posted as Project Head of the said
respondent at Panampilly Nagar, Kochi. He was also asked to join
either on deputation or recruitment basis, at least by 31.07.2008.
Otherwise, it was clarified that the recruitment/deputation will be
cancelled.
2. Again, the appellant was alerted by Ext.P4 dated 21.7.2008
issued by the 1st respondent that he has to join duty by 31.07.2008.
By communication dated 25.07.2008, the KSEB informed the 1st
respondent that it has no objection in relieving the appellant for a
period of one year initially, subject to terms and conditions on
deputation attached to that letter. The appellant, thereafter, by his
letter dated 28.07.2008, informed the 1st respondent that he will be
relieved from the KSEB on receipt of the agreement on the terms and
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conditions concerning his deputation. The appellant submits,
thereafter, there was no response from the 1st respondent. Finally on
13.10.2008 he was informed by Ext.P7 as follows :
“With reference to your letter above, it has been decided by the
Competent Authority that there is no requirement for JGM/Electrical
at ICON’S KESB now. Hence the nomination of Shri.Ramesh.A.,
Assistant Executive Engineer, Relay Sub-Division for deputation to
IRCON is not being agreed to.”
3. The appellant filed Ext.P8 representation dated 8.11.2008
praying to reconsider the matter. Finally he was informed by Ext.P9
that if he intends to join the 1st respondent, he can join before
26.12.2008. He has to join as an open market candidate and not as
a deputationist. Since there is no requirement of Joint General
Manager at Kochi, he is likely to be posted anywhere in India. The
relevant portion of the said order reads as follows :
“In terms of this office letter NO.IRCON/HRM/Elect.
Engrs./74-07/3877 dated 27.12.2007, you were given an offer for
appointment to the post of Jt. General Manager/Electrical in the
scale of Rs.17500-400-22300 plus Special Allowance of Rs.1600
per month (IDA) through open market.
In case you intend to join IRCON, the above offer is valid till
26.12.2008. However, posting will be in accordance to the
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requirement of the company and you can be posted anywhere in
the office/project sites of the company except Kochi where the
Management has reviewed the requirement and found that at this
state there is no need for the post of JGM/Elect. at Kochi.
All other terms and conditions of the letter remain the same.”
Though, thereafter, the appellant offered his willingness to join on
leave without allowance basis by submitting Ext.P10 representation
the same was not agreed to, by the first respondent, which issued
Ext.P11 communication, stating that no further extension could be
given beyond 26.12.2008. It was also informed that he cannot be
allowed to take up employment as an employee on leave without
allowance. The appellant immediately filed Ext.P12, praying for
reconsideration of the stand taken by the 1st respondent in Ext.P11
and also offering himself as an open market candidate anywhere in
India. But, there was no response. Thereafter, the Writ Petition was
filed in November 2009, seeking the following reliefs :
“(i) to issue a writ of mandamus directing respondents 1
and 2 to permit the petitioner to join duty as Joint General
Manager/Electrical (on deputation) forthwith.
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(ii) to issue such other appropriate writ, order or direction
as this Hon’ble Court deem fit and proper in the facts and
circumstances of the case.”
The learned Single Judge dismissed the Writ Petition in limine,
holding that there is nothing wrong with the change of policy adopted
by the 1st respondent, not to allow the petitioner to join duty on
deputation basis. The learned Single Judge also noticed that there
was a delay of more than ten months in approaching this Court after
the issuance of Ext.P11. Feeling aggrieved by the said Judgment,
this Writ Appeal is preferred. The prayer of the appellant is for a
mandamus. A mandamus will be issued from this Court, only if it is
found that the 1st respondent has got a duty to allow the appellant to
join duty on deputation basis and the appellant has got a
corresponding right to the performance of that duty by the 1st
respondent. As rightly pointed out by the learned Single Judge, it is
always open to the employer to change his policy regarding
engagement of Officers. If the employer says, he does not require a
deputationist, but only a regular hand, there is nothing wrong with it.
From the prayer quoted above, it is clear that the appellant wanted to
join as a deputationist though in Ext.P12, he has claimed that he is
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willing to join as an open market candidate. Since the appellant has
failed to bring to our notice, any legal right flowing from a statute,
custom or contract to be appointed on deputation basis and a
corresponding duty in the 1st respondent to appoint the appellant on
deputation basis, he is not entitled to get any relief. Accordingly, the
Writ Appeal is dismissed.
K.BALAKRISHNAN NAIR, JUDGE
P.BHAVADASAN, JUDGE
sta
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