IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 19481 of 2005(T)
1. PREMARAJAN, AGED 52 YEARS, S/O.PAITHAL,
... Petitioner
Vs
1. THE KERALA STATE ROAD TRANSPORT
... Respondent
2. THE BOARD OF DIRECTORS OF K.S.R.T.C.
3. THE FINANCIAL ADVISER AND CHIEF ACCOUNTS
4. THE CHIEF VIGILANCE AND DISCIPLINARY
5. THE EXECUTIVE DIRECTOR (T) KERALA STATE
6. THE EXECUTIVE DIRECTOR(A) & S,
7. THE WORKS MANAGER, KERALA STATE ROAD
8. E.K.SASI, CHARGEMAN GRADE II(TYRE
9. O.SATHIANDRAN, CHARGEMAN GRADE II,
For Petitioner :SRI.P.P.SOMAN NAIR
For Respondent :SRI.P.CHANDRASEKHAR
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :04/12/2008
O R D E R
S. Siri Jagan, J.
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W. P (C) No. 19481 of 2005
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Dated this, the 4th December, 2008.
J U D G M E N T
The petitioner entered service of the Kerala State Road
Transport Corporation as a Tyre Retreader on 3-5-1975. He was
promoted as 1st Grade Tyre Retreader on 11-9-1980. While working
so, on 25-5-1985, disciplinary proceedings were initiated against him
alleging that he was unauthorisedly absent from duty from 13-12-
1984 onwards. After conducting an enquiry, on having been found
guilty of the misconduct alleged against him, the petitioner was
removed from service on 17-5-1986 as a punishment. Appeal filed
against that order of removal from service having been dismissed on
2-12-19887, the petitioner filed a revision before the Appellate
Tribunal for Kerala State Road Transport Corporation . The Tribunal,
after confirming the finding of guilt found that the penalty imposed is
disproportionate to the gravity of misconduct and set aside the
punishment imposed upon the petitioner. It was directed that the
petitioner may be reinstated in service forthwith and that he shall not
be entitled to back wages for the period during which he was kept out
of service. Pursuant thereto, the petitioner was reinstated in service
on 27-2-1991. However, by Ext. P2 order, the disciplinary authority
thereafter imposed a punishment of withholding of one increment
with cumulative effect with a further direction that the period during
which he was kept out of service would be regularised as leave
without allowances. The petitioner submits that counting the period
of absence as well, the petitioner was given further grade promotion
as Special Grade Tyre Retreader and that in Ext. P4 seniority list also,
his seniority position had not been changed. However, when
promotion to the next higher post of Chargeman Grade II (Tyre
Retreader) was considered, the petitioner was overlooked on the
ground of penalty and a person junior to him was promoted, who is
W.P.C. No. 19481/2005. -: 2 :-
the 8th respondent herein. The petitioner was again overlooked for
promotion to the same post by Ext. P6 order on the same ground
promoting the 9th respondent. Against such denial of promotion, the
petitioner filed Ext. P7 representation before the Managing Director.
However, by Ext. P8 order, the grade promotion sanctioned to him
was also cancelled. The petitioner is challenging Exts.P5, P6 and P8
orders in this writ petition.
2. During the pendency of the writ petition, the petitioner
retired from service on 30-11-2008.
3. The petitioner’s contention is that although, formerly, as per
grade promotion rules, leave without allowances exceeding 15 days,
without medical certificate, was excluded for the purpose of
monetary benefits of grade promotion by clause 9(f) thereof, that
clause was deleted by Ext. P9 order dated 1-3-1989 and therefore the
period of absence of the petitioner on account of the punishment has
to be reckoned for the purpose of grade promotion. As far as
regular promotion to the post of Chargeman Grade II (Tyre Retreader)
is concerned, the petitioner submits that the promotion is on the basis
of seniority. As is evident from Ext. P4, the petitioner’s seniority
remains unchanged despite the absence from duty on account of the
penalty. In so far as the promotion is by seniority only, the petitioner
could not have been overlooked for promotion on the basis of having
been kept out of service on account of penalty, which was later
quashed by the Tribunal. He therefore submits that he is entitled to
be promoted to the post of Chargeman Grade II with effect from the
date when the 8th respondent was promoted by Ext. P5 order dated
23-9-2004.
4. Although a counter affidavit has been filed on behalf of
respondents 1 to 7, nothing is mentioned therein as to the rules based
W.P.C. No. 19481/2005. -: 3 :-
on which the petitioner has been overlooked for promotion and his
grade promotion was cancelled. All what has been stated is that the
petitioner was punished for unauthorised absence and therefore the
petitioner is not entitled to either regular promotion or grade
promotion.
5. I have considered the contentions in detail.
6. It is a sad situation that a statutory authority that the Kerala
State Road Transport Corporation is, is unable to place before me the
relevant service rules applicable to the case. In so far as the
petitioner has stated in his writ petition that the promotion to the post
of Chargeman Grade II is by seniority and by virtue of Ext. P9, leave
without allowances should also be counted for the purpose of grade
promotion, which has not been denied by respondents 1 to 7, I have
no other go but to accept the same as true and correct. If for the
purpose of grade promotion, leave without allowances was also to be
counted as service, there is no justification for respondents 1 to 7 to
cancel the grade promotion given to the petitioner. That being so,
Ext. P8 order is liable to be quashed. I do so.
7. Next comes the question of eligibility of the petitioner for
promotion as Chargeman Grade II. As I have already stated, I have
accepted the contention of the petitioner that the promotion to the
post of Chargeman Grade II is purely by seniority alone in so far as
the Kerala State Road Transport Corporation has not chosen to
controvert the averment of the petitioner and they have not chosen to
produce the Rules regarding such promotion. If that be so, as is clear
from Exts.P5 and P6, the petitioner was senior to respondents 8 and
9. As such, by virtue of the seniority, the petitioner was entitled to be
promoted in preference to respondents 8 and 9. In so far as it is not
a selection post, the punishment imposed on the petitioner is not a
W.P.C. No. 19481/2005. -: 4 :-
relevant factor for denying him promotion in the absence of any rules
to that effect unless he has been imposed with the punishment of
barring of promotion. Therefore, I find that the petitioner is entitled
to be promoted to the post of Chargeman Grade II (Tyre Retreader)
with effect from the date when the 8th respondent was promoted to
that post. However, I am not inclined to direct the Corporation to pay
to the petitioner arrears of salary from the date of such notional
promotion to the date of retirement. But, the petitioner’s pay shall be
fixed as if he had been promoted on the date when the 8th respondent
was promoted and his pensionary benefits shall be re-fixed
accordingly. Orders in this regard shall be passed and arrears of
retirement benefits be paid to the petitioner along with any amount
recovered from him on account Ext. P8 order within three months
from the date of receipt of a copy of this judgment. The writ petition
is disposed of as above.
Sd/- S. Siri Jagan, Judge.
Tds/