A. Raju v. Kerala Forest Development Corporation Ltd. & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:- THE HONOURABLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE A.K.BASHEER THURSDAY, THE 25TH SEPTEMBER 2008 / 3RD ASWINA 1930 W.A.No.3353 of 2001(A) ------------------------------------------ ## AGAINST THE JUDGEMENT IN O.P.NO.5172/1991, DATED 06/06/2001 .................... ## APPELLANT/PETITIONER:- ------------------------------------ A.RAJU, FIELD ASSISTANT GR-I, KERALA FOREST DEVELOPMENT CORPORATION LTD., ARIPPA SUB UNIT, VIA.KULATHUPUZHA. BY ADV. SRI.ELVIN PETER P.J. SRI.S.RAMESH SRI.P.N.SANTHOSH SRI.S.D.ASOKAN ## RESPONDENTS/RESPONDENTS: ---------------------------------------------- 1. KERALA FOREST DEVELOPMENT CORPORATION LTD., REPRESENTED BY ITS MANAGING DIRECTOR, “AARANYAKOM”, KARAPUZHA, WEST KOTTAYAM P.O., KOTTAYAM. 2. THE MANAGING DIRECTOR, KERALA FOREST DEVELOPMENT CORPORATION LTD., “AARANYAKOM”, KARAPUZHA, WEST KOTTAYAM P.O., KOTTAYAM. 3. THE SECRETARY, KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM. 4. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNEMNT SECRETARIAT, THIRUVANANTHAPURAM. W.A.NO.3353/2001-A. [ 2 ] 5. E.MOHAMMED ASHRUF, ASSISTANT MANAGER, KFDC, THOLICODE P.O., PUNALUR. 6. S.NAGAPPAN NAIR, ASSISTANT MANAGER, KFDC, CHOZIACODE P.O., ARIPPA, KOLLAM DISTRICT. 7. E.S.ANANDAN, ASSISTANT MANAGER, KFDC, ARIPPA, CHOZIACODE, KOLLAM DISTRICT. 8. M.J.CHACKO, ASSISTANT MANAGER, KFDC DIVISIONAL OFFICE, THOLICODE P.O., PUNALUR. 9. K.G.SASIDHARAN PILLAI, DIVISIONAL MANAGER, KFDC, PAMBA DAM P.O, VANDIPERIYAR, IDUKKI DISTRICT. 10. T.MONY, ASSISTANT MANAGER, KFDC, DIVISIONAL OFFICE, THOLICODE P.O., PUNALUR. 11. K.RADHAKRISHNA PILLAI, ASSISTANT MANAGER, KFDC, MEENAR ESTATE, GAVI P.O., VANDIPERIYAR VIA, IDUKKI DISTRICT. 12. P.M.MOHAMMED BASHEER, ASSISTANT MANAGER, KFDC, DIVISIONAL OFFICE, MUNNAR, IDUKKI DISTRICT. 13. V.M.PRABHAKARAN, ASSISTANT MANAGER, KFDC, DIVISIONAL OFFICE, MANANTHAVADY, WAYANAD DISTRICT. 14. K.B.KOSHORE KUMAR, ASSISTANT MANAGER, KFDC, DIVISIONAL OFFICE, MUNNAR, IDUKKI DISTRICT. W.A.NO.3353/2001-A. [ 3 ] 15. K.RADHAKRISHNAN, ASSISTANT MANAGER, KFDC, DIVISIONAL OFFICE, NENMARA P.O., PALAKKAD DISTRICT. 16. ABDUL BASHEER C.A., DIVISIONAL MANAGER, KFDC, MUNNAR, IDUKKI DISTRICT. 17.T.R.SATHEESAN, ASSISTANT MANAGER, KFDC, DIVISIONAL OFFICE, NENMARA, PALAKKAD DISTRICT. 18. K.M.VENUGOPAL, ASST. MANAGER, KFDC, DIVISIONAL OFFICE, NENMARA, PALAKKAD DISTRICT. 19. M.JOJO JACOB, DIVISIONAL MANAGER, KFDC, DIVISIONAL OFFICE, MANANTHAVADY, WAYANAD DISTRICT. 20. C.K.SURENDRANATH, ASST. MANAGER, KFDC, KARAPUZHA, KOTTAYAM. 21. K.V.VENUGOPAL, ASST.MANAGER, KFDC, ACHENCOIL, CHENKOTTA VIA., KOLLAM DISTRICT. 22. K.R.BHARATHARAJAN, ASST. MANAGER, KFDC, KARAPUZHA, KOTTAYAM. 23. P.V.SREENIVASAN, DIVISIONAL MANAGER, KFDC, DIVISIONAL OFFICE, NENMARA P.O., IDUKKI DISTRICT. 24. M.B.PONNUNNI, ASST. MANAGER, KFDC, DIVISIONAL OFFICE, THOLICODE P.O., KOLLAM DIST. W.A.NO.3353/2001-A [ 4 ] 25. P.K.RAJAPPAN, ASST.MANAGER, KFDC, DIVISIONAL OFFICE, THIRUVANANTHAPURAM. 26. K.VIPINCHANDRAN, ASST. MANAGER, KFDC, PAMBA DAM P.O., VANDIPERIYAR VIA., IDUKKI DISTRICT. 27. P.N.BHANUVIKRAMAN NAIR, DIVISIONAL MANAGER, KFDC, GAVI P.O., VANDIPERIYAR VIA., IDUKKI DIST. 28. G.L.PAULOSE, ASST. MANAGER, KFDC, GAVI P.O., VANDIPERIYAR VIA., IDUKKI DIST. 29. V.S.SREENIVASAN, ASST.MANAGER, KFDC, PAMBA DAM P.O., VANDIPERIYAR VIA., IDUKKI DIST. 30. SUNNY MATHEW, DIVISIONAL MANAGER, KFDC, KARAPUZHA, KOTTAYAM DISTRICT. 31. K.SURESH MENON, DIVISIONAL MANAGER, KFDC, PROJECT IMPLEMENTATION CELL, KARAPUZHA, KOTTAYAM DISTRICT. 32. P.ACHUTHAN, ASST.MANAGER, KFDC, DIVISIONAL OFFICE, KANIMANGALAM, THRISSUR DIST. 33. A.USEPH, ASST.MANAGER, KFDC, DIVISIONAL OFFICE, MANANTHAVADY, WAYANAD DIST. 34. P.PADMANABHAN, ASST. MANAGER, KFDC, GAVI ESTATE, GAVI P.O., VANDIPERIYAR VIA., IDUKKI DISTRICT. W.A.NO.3353/2001-A. [ 5 ] 35. A.M.SREEKUMARN NAIR, ASST.MANAGER, KFDC, PERINGAMALA P.O., PALODE, NEDUMANGAD, THIRUVANANTHAPURAM. 36. K.K.KARIAN, ASST.MANAGER, KFDC, DIVISIONAL OFFICE, MUNNAR, IDUKKI DISTRICT. 37. K.SREDHARAN, ASST.MANAGER, KFDC, DIVISIONAL OFFICE, THALICODE P.O., PUNALUR, KOLLAM DISTRICT. 38. M.U.GOPI, ASST. MANAGER, KFDC, DIVISIONAL OFFICE, NENMARA, PALAKKAD DIST. R1 & R2 BY STANDING COUNSEL SRI.V.G.ARUN. R3 BY STANDING COUNSEL SRI.ALEXANDER THOMAS. R4 BY SENIOR GOVERNMENT PLEADER SMT.K.MEERA. R10, R24 & R38 BY ADV.SRI.P.G.PARAMESWARA PANICKER (SR.) & SRI.P.GOPAL. ADV. SRI.T.R.RAMAN PILLAI (SR.) ADV. SRI.MATHAI M.PAIKEDAY (SR.) ADV.SRI.V.K.ISSAC. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 25/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:- ## **H.L.Dattu, C.J. & A.K.Basheer, J.** ---------------------------------------------- W.A.No.3353 of 2001-A ---------------------------------------------Dated, this the 25[th] September, 2008 ## **JUDGMENT** ## **Basheer, J.** Appellant is stated to be working as Field Assistant Grade II in the Kerala Forest Development Corporation Limited (for short “the Corporation). He had challenged Exhibit P11 seniority list of Field Assistants Grade I in the writ petition contending, inter alia, that the promotion given to the candidates enlisted in the said list was wholly illegal and arbitrary. It was further contended that the appellant, having been recruited through the Kerala Public Service Commission pursuant to Exhibit P2 notification in a proper and regular manner and respondents 5 to 38 having been appointed without consultation of the Commission, was liable to be treated as senior. The above contentions were repelled by the learned Single Judge in the impugned judgment. It is thus the appellant has preferred this Writ Appeal. (2) The Corporation came into existence, admittedly, in the year 1976. Exhibit P1 notification was issued by the Government in this regard on July 30, 1976. It is not in dispute that at the inception of the Corporation as a Government Company, the Managing Director was permitted by the Government to make recruitment of six Managers and forty Field Assistants directly. It is not in controversy that respondents 5 to 38 were appointed by the Managing Director on the strength of the permission given by the Government W.A.No.3353 of 2001 - 2 - way back in the year 1977. It is also on record that respondents 5 to 38 had undergone training as prescribed under the Rules or Regulations which were then framed for the said purpose. (3) It is the admitted position that the appellant was appointed as Field Assistant Grade II in the year 1980. In 1987, the Corporation had published Exhibit P11 list of promotees from the cadre of Field Assistants Grade II to the cadre of Field Assistants Grade I. Respondents 5 to 38 were included in the said list. A perusal of Exhibit P11 would clearly show that the promotion was effected on the basis of the ranking of the candidates in the category of Field Assistants as they appeared in the training course. The said list dated July 20, 1987 was challenged by the appellant in the writ petition filed in the year 1991. (4) It is contended by the appellant that since respondents 5 to 38 were not recruited through Public Service Commission without following the regular process of selection, they could not be treated to have been appointed on a regular basis and, therefore, they cannot have the status of regular recruitees. According to the appellant, he having been appointed through Public Service Commission, his appointment alone could be treated as regular and valid. It is further contended by him that even if he was junior to respondents 5 to 38 by over three years, the respondents 5 to 38 could not claim seniority over him. The said contention was repelled by the learned Single Judge, holding that the appointments of respondents 5 to 38 could not be treated as illegal or irregular. W.A.No.3353 of 2001 - 3 - (5) It has to be noticed that Exhibit P11 seniority list was published in the year 1987. The petitioner has chosen to file the writ petition only in the year 1991. There is absolutely no explanation for the delay on the part of the appellant in choosing to challenge the said seniority list, which, even according to the appellant, is only provisional after a lapse of four years. (6) There is yet another aspect of the matter. The appellant has not sought to quash the appointments of respondents 5 to 38. The only contention of the appellant is that he being appointed through Public Service Commission, he is entitled to be treated as senior to respondents 5 to 38 who did not undergo a regular selection process. We are unable to accept the above contention. As stated earlier, the Managing Director of the Corporation, at the inception of the Corporation in the year 1976, was permitted by the Government to make appointments of respondents 5 to 38 as Field Assistants and six other Managers. The said appointments were made in terms of the direction issued by the Government. More importantly, respondents 5 to 38 had been continuing in service eversince their appointment and that too after undergoing necessary training as Field Assistants. Their seniority was recognised in the year 1987. The appellant could not have challenged the seniority of respondents 5 to 38 after a lapse of more than four years on the specious plea that he should be treated as senior, since his appointment was through the Public Service Commission. W.A.No.3353 of 2001 - 4 - (7) The learned counsel has invited our attention to the decision of the apex Court in the case of _Dinkar Anna Patil_ v. _State of Maharashtra_ [(1991) 1 SCC 354]. In the said decision the issue that arose for consideration was the inter se seniority between direct recruits and promotees in the cadre of Sales Tax Officers Class I, in the Maharashtra Sales Tax Department. The Court held that the promotions given to the employees in the Department overlooking the Recruitment Rules and also ignoring the ratio for promotion was per se illegal. Those officers who got promotion fortuitously, ignoring the ratio for promotion could not be treated as seniors unless their services were regularised. The dictum laid down in the above decision has no application in the case on hand. (8) Having considered the contentions raised by the appellant and having heard the learned counsel for the parties, we do not find any merit in the contentions raised by the appellant. The Writ Appeal fails and it is accordingly dismissed. C.M.P.No.7605 of 2001 is also dismissed. H.L.Dattu Chief Justice vku/- A.K.Basheer Judge