High Court Kerala High Court

K.Krishnan vs State Of Kerala on 18 June, 2009

Kerala High Court
K.Krishnan vs State Of Kerala on 18 June, 2009
       

  

  

 
 
  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.
                -------------------------------------------------
                     W.P.(C)No. 28830 OF 2008
                -------------------------------------------------
                 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

WPC : 28830/08
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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;

WPC : 28830/08
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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

WPC : 28830/08
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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

WPC : 28830/08
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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

WPC : 28830/08
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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.

WPC : 28830/08
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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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