IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 28830 of 2008(F)
1. K.KRISHNAN, FIELD OFFICER,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. THE OIL PALM INDIA LTD., REPRESENTED
3. K.C.UNNIKRISHNAN, ASSISTANT MANAGER
For Petitioner :SRI.P.C.SASIDHARAN
For Respondent :SRI.B.MOHANLAL
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :18/06/2009
O R D E R
S. SIRI JAGAN, J.
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W.P.(C)No. 28830 OF 2008
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Dated this the 18th day of June, 2009
JUDGMENT
The petitioner and the 3rd respondent who belong to Scheduled
Caste Community, were selected through special recruitment by PSC
for appointment to the Plantation Corporation of Kerala Ltd, a public
sector company, of which the entire shares are held by the
Government of Kerala. In the rank list prepared by the PSC the
petitioner was above the 3rd respondent in rank. In the advice list
also the petitioner was above the 3rd respondent. They joined the
Plantation Corporation of Kerala Ltd., on the same day. While they
were continuing in the service, the Plantation Corporation of Kerala
Ltd., formed a subsidiary company, which is the 2nd respondent
herein. Employees of the Plantation Corporation of Kerala Ltd. were
given option to join the newly formed subsidiary company. Both the
petitioner as well as the 3rd respondent opted to join the 2nd
respondent company. Their options were accepted and they were
absorbed as employees of the 2nd respondent company. While they
were continuing as such, there arose a vacancy, which was reserved
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for Scheduled Caste Community, of Assistant Manager(Estate). The
qualification prescribed for appointment to that post was a degree
with 7 years of service. Both the petitioner and the 3rd respondent did
not have the qualification of a degree. But both had 31 years of
service. By Ext.P4, the Board of Directors decided to give the 3rd
respondent relaxation in qualification and pursuant thereto the 3rd
respondent was appointed to the post of Assistant Manager(Estate).
That order is under challenge before me.
2. The contention raised by the petitioner is that petitioner was
senior to the 3rd respondent in service. When both of them had same
number of years of service, in the matter of relaxation in qualification
for higher posts, the 2nd respondent cannot discriminate between the
two. If the 3rd respondent is eligible for relaxation, the petitioner is
also equally eligible for relaxation. The petitioner being senior to the
3rd respondent, the petitioner should be preferred for appointment
giving relaxation, if the 2nd respondent decides to appoint, giving
relaxation in qualification, is the contention raised by the petitioner.
On these contentions the petitioner seeks the following reliefs:
“i. to issue a writ of certiorari quashing Exts.P4 and P5;
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ii. To issue a writ of mandamus, order or direction directing
the respondents to promote the petitioner to the post of Assistant
Manager(Estate);
iii. To declare that the action of the respondents in
extending the benefits to the 3rd respondent and discriminating the
similarly placed other persons is highly illegal, unjust and violative
of Articles 14, 16 and 21 of the Constitution;”
3. Counter affidavits have been filed by respondents 2 and 3.
The counsel for the 2nd respondent would contend that the 2nd
respondent is unaware of the seniority position of the petitioner and
the 3rd respondent in the holding company, namely, the Plantation
Corporation of Kerala Ltd. When after option, they joined the 2nd
respondent subsidiary company, since the 3rd respondent was senior
in age, he was treated as senior and it is on that ground the 3rd
respondent was given relaxation in qualification and promoted to the
post of Assistant Manager(Estate). According to them, there is
nothing wrong in the action of the 2nd respondent in giving relaxation
to the 3rd respondent in qualification and promoting him as Assistant
Manager(Estate). Both respondents 2 and 3 rely on Ext.R2(a) order
dated 10.08.2000, whereby all field assistants of the 2nd respondent
company were re-designated as field officers. 8 persons were so
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re-designated as field officers. 7th is the 3rd respondent and 8th is the
petitioner. Respondents 2 and 3 would contend that in Ext.R2(a),
names are arranged in the order of seniority and since the petitioner
has not challenged the same, he cannot now turn back and contend
that he is senior to the 3rd respondent. They also rely on Ext.R2(c)
and R2(d), whereby the 3rd respondent was given charge of the post
of Assistant Manager(Estate) on 17.09.07 and 30.06.08. According
to them that would also show that the 3rd respondent was treated as
senior to the petitioner and since he had not challenged the same, he
must be taken to have acquiesced in the seniority position and
therefore he cannot now turn around and claim that he is senior to
the 3rd respondent.
4. I have considered the rival contentions in detail. I am not at
all able to countenance the contention of the 2nd respondent that
since they are a separate company from the holding company they
cannot be expected to know the details of service of the petitioner
and the 3rd respondent in the holding company. A subsidiary
company cannot claim that they were not aware of what happened in
the holding company in respect of employees who opted to come
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over to the subsidiary company on the formation of the subsidiary
company. It is not disputed before me that they have been absorbed
in the subsidiary company with continuity of service and benefit of the
service in the holding company. That being so, the subsidiary
company is expected to know all service details of all employees who
have come over from the holding company to the subsidiary
company by option. The 2nd respondent company cannot feign
ignorance about the service details of such employees, who have
come over from the holding company to the subsidiary company by
option.
5. Neither the 2nd respondent nor the 3rd respondent disputes
the fact that in the rank list prepared by the PSC for selection
originally to the holding company and the advice list issued by the
PSC, the petitioner was above the 3rd respondent in rank. That being
so, respondents 2 and 3 cannot now dispute the fact that in the
holding company the petitioner joined as senior to the 3rd respondent.
Once option is given, for going over to the subsidiary company with
all service benefits, the service put in the holding company would
include seniority also. Therefore, I cannot countenance the
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contentions of the 2nd respondent that, when the petitioner and the 3rd
respondents were absorbed in the 2nd respondent company, the 3rd
respondent was treated as senior to the petitioner. The fact that the
petitioner had not challenged Exts.R2(a), R2(c) and R2(d) does not
alter the situation in any manner. Ext.R2(a) is only a list of the field
assistants, who have been re-designated as field officers. The fact
that in that list the petitioner was shown below the 3rd respondent
need not necessarily give rise to the conclusion that the petitioner
was treated as junior to the 3rd respondent. So also, the charge
arrangements need not necessarily be in the order of seniority. It
depends purely on exigencies of service. It is also settled that
charge arrangement would not give any preferential right with the
person who is put in charge for regular promotion to that post.
Further admittedly no seniority list has been published at any time.
Therefore the fact that the petitioner has not challenged those
documents is of no consequence for deciding the question of
seniority between the petitioner and the 3rd respondent.
6. Respondents 2 and 3 could not put forward any argument to
the effect that the despite the seniority of the petitioner the 3rd
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respondent should be preferred for any specific reason. In fact all
along their contention is that only because the 2nd respondent treated
the 3rd respondent as senior to the petitioner the 3rd respondent was
preferred to the petitioner for giving relaxation in qualification. The 2nd
respondent has no case that at any time any seniority list was
prepared or that at any time the petitioner was informed that he is
junior to the 3rd respondent. That being so, on that ground also
respondents 2 and 3 cannot allow the 3rd respondent to steal march
over the petitioner in the matter of granting relaxation in qualifications
for promotion. Therefore the granting of relaxation to the 3rd
respondent, who is junior to the petitioner in preference to the
petitioner, is clearly arbitrary and discriminatory. Although granting of
relaxation in qualification is a discretion vested with the 2nd
respondent, that discretion also can be tested in the anvil of Articles
14 and 16 of the Constitution of India. I have no doubt in my mind
that the action of the 2nd respondent in preferring 3rd respondent to
the petitioner for granting such relaxation and promotion is clearly
arbitrary and discriminatory and violative of the fundamental rights of
the petitioner under Articles 14 and 16 of the Constitution of India.
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Consequently, the promotion of the 3rd respondent in preference to
the petitioner is liable to be set aside. Accordingly, I quash Exts.P4
and P5. The 2nd respondent is directed to reconsider the matter of
promotion to the post of Assistant Manager(Estate). If they decide to
grant promotion giving relaxation in qualification, both the petitioner
and the 3rd respondent should be given equal opportunity and in such
an event the petitioner being senior in service to the 3rd respondent,
he should be given preference on the basis of such seniority for
relaxation in qualification and consequent promotion.
The writ petition is disposed of as above.
S. SIRI JAGAN, JUDGE
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