Abdul Samd T.A. v. Fertilisers and Chemicals Travancore Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** ## **THE HONOURABLE MR. JUSTICE T.R.RAVI** **THURSDAY, THE 17TH DAY OF SEPTEMBER 2020/26TH BHADRA, 1942** ## **WA.No.836 OF 2020** **AGAINST JUDGMENT IN WP(C)3830/2011(C) OF HIGH COURT OF KERALA APPELLANT/PETITIONER:** **ABDUL SAMD T.A.,AGED 51 YEARS S/O ABDUL RAHMAN MOULAVI T.K, BADGE NO 12142, SENIOR TECHNICIAN (ELECTRICAL) FACT, UDYOGAMANDAL, ELOOR PIN-683 501.** **BY ADVS.SRI.V.V.SIDHARTHAN (SR.) SRI.KAROL MATHEWS SEBASTIAN ALENCHERRY SRI.D.G.VIPIN** ## **RESPONDENTS:** - **1 THE FERTILISERS AND CHEMCIALS TRAVANCORE LTD. REPRESENTED BY ITS GENERAL MANAGER, (UDAYOGAMANDAL DIVISION), ELOOR-683 501.** - **2 THE CHIEF PERSONNEL MANAGER, THE FERTILISERS AND CHEMICALS TRAVANCORE LTD, UDAYOGAMANDAL DIVISION, ELOOR-683 501.** **R1-2 BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR R1-2 BY ADV. SRI.K.JOHN MATHAI R1-2 BY ADV. SRI.JOSON MANAVALAN R1-2 BY ADV. SRI.KURYAN THOMAS R1-2 BY ADV. SRI.PAULOSE C. ABRAHAM R1-2 BY ADV. SRI.RAJA KANNAN** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 17.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A.No.836/2020 -2- ## **JUDGMENT** ## **T.R.Ravi, J.** The petitioner joined the service of the 1[st] respondent as a Craftsman (Electrical) on 19.3.1990. Thereafter, he was appointed as Technician Maintenance (Electrical) on 4.7.1990. On 10.5.1993, the petitioner submitted Exhibit P2 request for special leave. The leave was granted as per Exhibit P3 dated 22.5.1993. By Exhibit P5, the 2[nd] respondent granted sanction to the petitioner to rejoin duty, and, on 19.4.1994 the petitioner rejoined duty as can be seen from Exhibit P6. On 21.8.2008, the 1[st] respondent issued Exhibit P7 order, promoting the petitioner as Senior Technician(Electrical). 2. On 12.6.2009, a Division Bench of this Court rendered the judgment in W.A.No.253 of 2009, filed by one T.V.Abdul Khader, who had retired from the service of the respondents as Senior Technician, wherein it was held that the appellant therein will not lose seniority during the period spent on special leave. Possibly taking cue from the above judgment, the petitioner W.A.No.836/2020 -3- submitted representations in 2010, contending that he should have been promoted as Senior Technician with effect from 4.7.2002. The petitioner contends that 12 vacancies occurred in the post of Senior Technician on 25.5.2002, and, persons junior to the petitioner were appointed to the vacancies, after an interview which was conducted on 21.6.2002. According to the petitioner, he completed 12 years of service as Technician on 18.3.2002, and he was hence eligible for being appointed to the vacancies which arose subsequently. 3. The respondents rejected the request made by the petitioner stating that the petitioner will lose seniority for the period of his absence from service on special leave. The petitioner in the above circumstances filed the Writ petition praying to quash Exhibit P11, to declare that he is entitled for seniority during the period of his absence while on special leave as per Exhibit P8 scheme and for a direction to the respondents to refix the seniority of the petitioner by counting the period of special leave also as service and grant him all promotions and consequential benefits arising thereof. The respondents filed a W.A.No.836/2020 -4- counter affidavit, contending that in the case of the petitioner, he completed the residency period of 12 years as required for promotion only on 16.5.2003, and he was promoted in the next arising vacancy in 2008. It is contended that for the purpose of calculating the residency period, the period during which the petitioner was on special leave cannot be taken into account. 4. The learned Single Judge, by judgment dated 22.11.2019, dismissed the Writ petition accepting the contentions of the respondents. It was noticed that going by Annexure 7 of Exhibit P1 promotion policy, a Technician with at least 12 years of service in Technical/equivalent grade in the line alone will be eligible to be considered for the position of Senior Technician. It was also noticed that in Exhibit P9 judgment, the Division Bench was not called upon to consider the question of completion of 12 years of service/residency and the dispute was only relating to seniority. Aggrieved by the judgment of the Single Judge, the petitioner has filed this appeal. 5. Heard Sri. V.V.Sidharthan, Senior Advocate, instructed W.A.No.836/2020 -5- by Advocate Vipin D.G on behalf of the appellant and Sri. Jayamohan on behalf of the respondents. 6. The Senior Counsel appearing for the appellant relied on the Division Bench judgment in W.A.253 of 2009 produced as Exhibit P9, in support of the contention that the period spent on special leave has to be counted for the purpose of seniority. We have gone through the judgment Exhibit P9. As rightly noticed by the learned Single Judge, the only contention raised by the appellant before the Division Bench in W.A.No.253 of 2009 was that he will not lose seniority during the period spent on leave. There was no claim in the said appeal, for a promotion overlooking the requirement of 12 years service as Technician/equivalent grade in the line. The Division Bench in that appeal was not called upon to consider Exhibit P11 promotion policy. The Court had only considered the orders whereby the appellant therein was sanctioned leave. Exhibit P9 will not in any way support the contentions of the appellant. 7. The counsel for the appellant relies on clauses 6 and 7 in Exhibit P3 to contend that as per the terms and conditions for W.A.No.836/2020 -6- grant of special leave, the period spent on leave will adversely impact only the claims like gratuity, provident fund, Contributory health scheme, quarters, uniforms, free schooling, interest subsidy, increment etc. and that Exhibit P3 does not speak of loss of seniority. Clause 10 of Exhibit P3 says that the appellant will be considered for promotion to higher post only after a period of one year after he is relieved on account of the special leave sanctioned to him. The appellant contends that going by the said clause, he is entitled to be promoted after the said period of one year. In answer, the counsel for the respondent contends that there is no dispute regarding the contents of Exhibit P3, and their effect. According to him, what is to be looked into is Exhibit P1 promotion policy which specifically says that only a Technician with at least 12 years service as Technician will be eligible to be considered for the position of Senior Technician. According to the counsel, the service contemplated is actual service and the period spent on special leave cannot be included for the purpose of such service. The counsel further contends that it is not a question of loss of any W.A.No.836/2020 -7- seniority but a case where the appellant had not become eligible for promotion on the date on which the vacancies occurred during 2002. 8. An issue to similar to the one on hand came up for consideration before a Full Bench of this Court in **State of Kerala v. Thomas** reported in **2015 (1) KLT 863(FB)** . The issue before the Full Bench was whether the period spent on leave without allowance for the purpose of employment abroad by the Private College Teachers affiliated to the Universities in the State of Kerala, are liable to be reckoned for the purpose of (1) pension (2) for grant of benefit of placement under the University Grants Commission (U.G.C) Scheme. In paragraph 56 of the judgment, the Full Bench held thus: “56. The word 'service' is not defined or explained in the U.G.C. scheme. Provisions regarding U.G.C. scheme do not find a place either in K.S.R. or in University Statutes. Therefore, the words employed in the Scheme have to be interpreted with due regard to the intent and object of the U.G.C. scheme. Otherwise it will only lead to unintended results contrary to the very object of the U.G.C. scheme ensuring additional benefits to the W.A.No.836/2020 -8- Private College Teachers like respondents by reckoning the number of years they worked abroad also. On close examination of all these provisions, keeping in mind the purpose behind the U.G.C. Act and the Scheme, will lead us to the conclusion that the **'completion of 8 years of service/completion of 16 years of service'** mentioned in the orders relating to placement (Ext.P9) can only be interpreted to mean and include only such number of years of service which can be reckoned as duty, which in turn can be reckoned for increments or in other words the period during which he actually discharged duties of teaching in the College or at least in any of the colleges under any of the Universities in India. (We have noticed that the revised U.G.C. Scheme 1998, which was implemented in the State through G.O. (P). No.171/99/H.Edn. dated 21.12.1999, has included a separate provision-cl.7.1, providing for counting of previous service without break as a Lecturer or equivalent in a University, college, national laboratory, or other scientific organisation e.g., C.S.I.R., I.C.A.R., D.R.D.O., U.G.C., I.C.S.S.R., I.C.H.R. and as U.G.C.R. research scientist, provided the post was in equivalent scale of pay of lecturer; qualifications for the post was not lower than that prescribed by U.G.C. for the post of Lecturer, the concerned lecturers possessed the qualifications prescribed by U.G.C., etc.). Therefore any period during which a teacher was on leave without W.A.No.836/2020 -9- allowance other than on the strength of medical certificate cannot be reckoned for the purpose of placement as Senior Lecturer or Selection Grade Lecturer under the U.G.C. Scheme Ext. P9.” (emphasis supplied) In the case on hand, the relevant clause in Ext.P1 reads thus: “e) Technicians with at least 12 years service as Technician/Equivalent grade in the line will be eligible to be considered for the position of Senior Technician” Applying the anomaly of completion of 8 years of service or 16 years of service, required for placement under the UGC scheme, the requirement of 12 years service as Technician can only be understood as the period during which he actually discharged duties of Technician, which necessarily will not include the period spent on special leave. 9. The contentions of the counsel for the appellant cannot be accepted. We are in complete agreement with the reasoning of the learned Single Judge. The petitioner had not completed the residency period of 12 years in 2002, when the vacancies had occurred, which is a prerequisite for promotion as W.A.No.836/2020 -10- Senior Technician. The period spent on special leave cannot be counted for such period of residency. Exhibit P9 judgment was rendered on a totally different situation and the Division Bench had not considered the promotion policy of the respondents or the requirements for being eligible for promotion. The conditions for grant of special leave, as stated in Ext. P3, will not in any way affect the requirement under the promotion policy. The contention that the appellant is entitled for promotion to a vacancy arising after he rejoins duty, can be accepted only subject to the requirement of fulfillment of the eligibility criterion. We also note the fact that the petitioner did not raise any claim for promotion at the time when the vacancy arose and his juniors were promoted to the post of Senior Technician. The claims were raised only in the representations dated 24.2.2010 and 29.2.2010, eight years after he became aware of such right if any. It is well settled that law will come only in aid of the _Vigilantibus_ and not the _Dormientibus_ . However, the delay is not a factor for deciding this appeal since we have already held that the appellant had not completed the residency period when the W.A.No.836/2020 -11- vacancies had arisen. If as contended by the appellant, he is to be considered for promotion immediately after one year from joining back after special leave, then it would be a premium conferred on persons who absent themselves for better prospects; negating the minimum residency period as mandated for promotion. We do not find any grounds for interference with the judgment of the learned Single Judge. The Writ appeal is dismissed. The parties shall bear their respective costs. Sd/- ## **K. VINOD CHANDRAN** ## **JUDGE** Sd/- **T.R. RAVI JUDGE** dsn