{"id":249108,"date":"2008-06-30T00:00:00","date_gmt":"2008-06-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/r-sathish-vs-c-premakumari-on-30-june-2008"},"modified":"2016-05-12T21:44:04","modified_gmt":"2016-05-12T16:14:04","slug":"r-sathish-vs-c-premakumari-on-30-june-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/r-sathish-vs-c-premakumari-on-30-june-2008","title":{"rendered":"R. Sathish vs C. Premakumari on 30 June, 2008"},"content":{"rendered":"
Kerala High Court<\/div>\n
R. Sathish vs C. Premakumari on 30 June, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nWA.No. 636 of 2003(D)\n\n\n1. R. SATHISH, STATISTICAL & RESEARCH\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. C. PREMAKUMARI, STATISTICAL &\n                       ...       Respondent\n\n2. COCHIN PORT TRUST, WILLINGTON ISLAND,\n\n3. THE SECRETARY, COCHIN PORT TRUST,\n\n4. THE CHAIRMAN, COCHIN PORT TRUST,\n\n5. THE UNION OF INDIA, REPRESENTED\n\n                For Petitioner  :SRI.C.P.SUDHAKARA PRASAD (SR.)\n\n                For Respondent  :SRI.M.V.BOSE\n\nThe Hon'ble the Chief Justice MR.H.L.DATTU\nThe Hon'ble MR. Justice A.K.BASHEER\n\n Dated :30\/06\/2008\n\n O R D E R\n<\/pre>\n
              H.L. DATTU, C.J. & A.K. BASHEER, J.\n<\/p>\n
          – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – –\n<\/p>\n
                             W.A. No. 636 of 2003\n<\/p>\n
          – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – –\n<\/p>\n
                   Dated this the 30th day of June, 2008
\n                                      Judgment
\nA.K.Basheer, J:\n<\/p>\n
      This writ appeal, which is at the instance of respondent No.5 in<\/p>\n
the Original Petition,         is directed against the order passed by the<\/p>\n
learned single Judge directing the Cochin Port Trust (for short, the Port<\/p>\n
Trust) to consider the claim of respondent No.1\/petitioner for<\/p>\n
promotion to the post of Statistical and Research Officer with effect<\/p>\n
from the date of occurrence of the vacancy. While issuing the above<\/p>\n
direction, the learned single Judge had quashed Exts.P14 and P15<\/p>\n
orders issued by the Port Trust, by which petitioner was reverted from<\/p>\n
the post of       Statistical and Research Officer and appellant was<\/p>\n
promoted.\n<\/p>\n
       2. A brief reference to the essential facts is necessary to consider<\/p>\n
the question whether          the claim of the appellant for promotion in<\/p>\n
preference to respondent No.1 is legal and valid. Parties shall be<\/p>\n
referred to in this judgment as they were arrayed in the Original<\/p>\n
Petition.\n<\/p>\n
      3. Petitioner joined the service of the Port Trust as Research<\/p>\n
Officer on June 3, 1996. Respondent No.5 was also appointed in the<\/p>\n
same cadre on December 30, 1996. But it is not                           in dispute that<\/p>\n
respondent No.5 was treated as senior to the petitioner on the basis of<\/p>\n
his rank in the select list.\n<\/p>\n
WA.636\/03                          : 2 :\n<\/p>\n
\n
       4. On December 1, 2000 a vacancy arose in the next promotion<\/p>\n
post viz., Statistical and Research Officer. Petitioner    had Masters’<\/p>\n
Degree in Statistics as well as in Computer Applications to her credit at<\/p>\n
the time of her appointment itself, whereas respondent No.5 was a<\/p>\n
B.Tech graduate in Computer science. On the date when the vacancy<\/p>\n
arose, the requisite qualification for the said post as prescribed in the<\/p>\n
Cochin Port Employees’ (Recruitment, Seniority and Promotion)<\/p>\n
Regulations 1964 was Masters’ degree in Statistics\/Mathematics\/<\/p>\n
Economics, with two years’ regular service as Research Officer and<\/p>\n
Masters’ Degree in Computer Science as a desirable qualification.<\/p>\n
Though admittedly petitioner was the only qualified          person for<\/p>\n
promotion at the time of occurrence of vacancy, her request was not<\/p>\n
considered since the Port Trust took the view that the proposal made by<\/p>\n
it for amendment of the qualification for the post, as resolved by the<\/p>\n
Board of Directors, was pending consideration before the Government<\/p>\n
of India.   The proposal was to include degree in Engineering with<\/p>\n
Computer Science as an alternate qualification for the post. Though the<\/p>\n
claim of the petitioner was resisted for some time, the management had<\/p>\n
promoted her as Statistical and Research Officer with effect from<\/p>\n
February 28, 2002, on an ad hoc basis as revealed from Ext.P8 order.<\/p>\n
       5. The Government of India issued a notification in the gazette<\/p>\n
dated March 8, 2002 amending the qualification for the post of<\/p>\n
Statistical and Research Officer in the Port Trust as requested by the<\/p>\n
WA.636\/03                         : 3 :\n<\/p>\n
\n
Board of Directors. Shortly thereafter, Ext.P14 order was issued by the<\/p>\n
Port Trust on May 13, 2002 reverting the petitioner from the post of<\/p>\n
Statistical and Research Officer. On the same day Ext.P15 order was<\/p>\n
issued promoting appellant\/respondent No.5 to the above post. It was<\/p>\n
in the above circumstances that the petitioner had filed the Original<\/p>\n
Petition under Article 226<\/a> of the Constitution seeking issue of a writ of<\/p>\n
certiorari to quash Exts.P14 and P15.    There was a further prayer to<\/p>\n
issue a writ of mandamus or such other appropriate writ or direction to<\/p>\n
the Port Trust to promote the petitioner to the post of Statistical and<\/p>\n
Research Officer with effect from the date of occurrence of vacancy.<\/p>\n
      6. Learned single Judge upheld the claim made by the petitioner<\/p>\n
primarily on the ground that on the date of occurrence of vacancy<\/p>\n
petitioner was the only qualified candidate available and also that there<\/p>\n
was no material on record to show that the Port Trust had taken a<\/p>\n
conscious decision not to fill up the vacancy till the amendment to the<\/p>\n
Rules was approved by the Government of India.\n<\/p>\n
      7. Learned counsel for the appellant contends that the Port Trust<\/p>\n
was justified in reverting the petitioner after amending the relevant<\/p>\n
regulation. It is pointed out by the learned counsel that petitioner was<\/p>\n
promoted only on an ad hoc basis. Obviously therefore petitioner was<\/p>\n
all along aware that her promotion was subject to the decision of the<\/p>\n
Government on the request made by the Director Bord. It is also<\/p>\n
contended by the learned counsel that the ad hoc promotion given to<\/p>\n
WA.636\/03                               : 4 :\n<\/p>\n
\n
the petitioner by itself was indicative of the conscious decision of the<\/p>\n
Port Trust not to fill up the vacancy on a permanent basis and therefore<\/p>\n
the learned single Judge was not justified in taking the view that no<\/p>\n
conscious decision had been taken by the Port Trust not to fill up the<\/p>\n
vacancy.\n<\/p>\n
       8. It is beyond controversy that petitioner was the only qualified<\/p>\n
candidate eligible for promotion on the date of occurrence of vacancy.<\/p>\n
To put it differently, respondent No.5 was not eligible for promotion as<\/p>\n
Statistical and Research Officer going by the then existing Rules because he<\/p>\n
did not have the requisite qualification. It is true that the Director Board of<\/p>\n
the Port Trust had passed a resolution to request the Government to accept<\/p>\n
its proposal to amend the qualification for the post of Statistical and<\/p>\n
Research Officer shortly before the vacancy arose. But that did not mean<\/p>\n
that the Port Trust had decided not to fill up the vacancy, which it was<\/p>\n
aware, was due to arise shortly. Therefore, the legitimate expectation of the<\/p>\n
petitioner that she would be promoted to the post could not have been<\/p>\n
faulted at all, especially since she had got the requisite qualifications. In<\/p>\n
fact petitioner had approached the management with such a request, which<\/p>\n
was apparently kept in cold storage for more than one year, though<\/p>\n
ultimately she was promoted, albeit, on an ad hoc basis.<\/p>\n
       9. It is trite that eligibility criteria prescribed in the recruitment rules<\/p>\n
governing the field as on the date of occurrence of vacancy alone are<\/p>\n
relevant. Significantly the Government had issued the gazette notification<\/p>\n
on March 8, 2002 amending the qualification                   only prospectively.<\/p>\n
WA.636\/03                          : 5 :\n<\/p>\n
\n
Therefore, as rightly contended by the petitioner, the said prospective<\/p>\n
amendment could not have had any impact on the vacancy which had arisen<\/p>\n
more than two years prior to the amendment. More importantly, by the time<\/p>\n
the amendment was brought into force, petitioner had          already been<\/p>\n
promoted. The learned Single Judge, in our view, was therefore justified in<\/p>\n
upholding the claim for promotion made by the petitioner.        As rightly<\/p>\n
noticed by the learned     Judge, the management had not produced any<\/p>\n
material to show that a conscious decision had been taken not to fill up the<\/p>\n
post pending amendment of the Rules. Still worse, there was nothing on<\/p>\n
record to show that aspirants for promotion like the petitioner, had been<\/p>\n
informed about any such decision. The entire conduct of the management<\/p>\n
clearly revealed that respondent No.5 was given a favoured treatment.<\/p>\n
      10. It is contended by learned counsel for the appellant and the Port<\/p>\n
Trust that going by the provisions contained in Section 111<\/a> of the Major<\/p>\n
Port Trust Act, 1963 it was incumbent on the management to implement any<\/p>\n
order or direction issued by the Government. After the amendment of the<\/p>\n
regulations prescribing the qualification for the post in question, the<\/p>\n
management had to revoke its earlier decision to promote the petitioner<\/p>\n
since respondent No.5 who had the requisite qualification under the<\/p>\n
amended Rules was senior to the petitioner. Thus, it is contended that the<\/p>\n
management had only complied with the statutory mandate contained in<\/p>\n
Section 111<\/a> of the Act.\n<\/p>\n
      11. Having carefully perused the provisions contained in Section 111<\/a><\/p>\n
of the Act, we are unable to accept the above contention, which in our<\/p>\n
view, is totally misconceived and untenable. What has been provided in<\/p>\n
WA.636\/03                           : 6 :\n<\/p>\n
\n
Section 111<\/a> is only that every Board, in the discharge of its functions under<\/p>\n
the Act, shall be bound by the directions, on questions of policy, which may<\/p>\n
be issued by the Central Government in writing from time to time. We have<\/p>\n
no hesitation to hold that there was no question of policy involved in the<\/p>\n
issue on hand. What was called in question by the petitioner was his right<\/p>\n
to be considered for promotion to a vacancy which had arisen. He had only<\/p>\n
requested the management to promote him in accordance with the then<\/p>\n
existing Regulation\/Rule as contained in Cochin Port Employees<\/p>\n
(Recruitment, Seniority and Promotion) Regulations, 1964. Therefore, the<\/p>\n
contention raised by the appellant and the Port Trust based on Section 111<\/a><\/p>\n
is also liable to be repelled. We do so.\n<\/p>\n
      13. Having regard to the entire facts and circumstances, we do not<\/p>\n
find any reason to interfere with the order passed by the learned Single<\/p>\n
Judge. There is no merit in any of the contentions raised by the appellant.<\/p>\n
           The writ appeal fails and it is accordingly dismissed.<\/p>\n
                                                            H.L. DATTU
\n                                                            Chief Justice<\/p>\n
                                                          A.K. BASHEER
\n                                                                 Judge<\/p>\n
an.<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court R. Sathish vs C. Premakumari on 30 June, 2008 IN THE HIGH COURT OF KERALA AT ERNAKULAM WA.No. 636 of 2003(D) 1. R. SATHISH, STATISTICAL & RESEARCH … Petitioner Vs 1. C. PREMAKUMARI, STATISTICAL & … Respondent 2. COCHIN PORT TRUST, WILLINGTON ISLAND, 3. THE SECRETARY, COCHIN PORT TRUST, 4. THE CHAIRMAN, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-249108","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nR. Sathish vs C. 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