Ajith Kumar D. v. Cochin Port Trust & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **MONDAY, THE 9TH DAY OF DECEMBER 2013/18TH AGRAHAYANA, 1935** ## **WP(C).No. 6326 of 2011 (M) ---------------------------** ## **PETITIONER(S): ---------------** **AJITH KUMAR.D., ASSISTANT EXECUTIVE ENGINEER (ELECTRICAL) COCHIN PORT TRUST, (AGED 40, S/O.DHANDAPANI 'NIVEDYAM', H.NO.18/2359-D, THOPPUMPADY COCHIN-5)** **BY ADVS.SRI.K.S.MADHUSOODANAN SRI.T.V.JAYAKUMAR NAMBOODIRI SRI.THUSHAR NIRMAL SARATHY SRI.M.M.VINOD KUMAR SRI.P.K.RAKESH KUMAR SMT.M.A.RUXANA** ## **RESPONDENT(S):** **---------------** ## **1. COCHIN PORT TRUST,** **REPRESENTED BY SECRETARY, COCHIN PORT TRUST, COCHIN-9.** **2. CHIEF MECHANICAL ENGINEER, COCHIN PORT TRUST, COCHIN-9.** ## **3. P.D.JOHN,** **ASSISTANT EXECUTIVE ENGINEER (ELECTRICAL) COCHIN PORT TRUST, COCHIN-9.** **4. LATHA G.MENON, ASSISTANT EXECUTIVE ENGINEER (ELECTRICAL) COCHIN PORT TRUST, COCHIN-9. R1-2 BY ADV. SRI.E.K.NANDAKUMAR R1-2 BY ADV. SRI.A.K.JAYASANKAR NAMBIAR R1-2 BY ADV. SRI.K.JOHN MATHAI R1-2 BY ADV. SRI.P.BENNY THOMAS R1-2 BY ADV. SRI.P.GOPINATH R3 BY ADV. SRI.S.RAMESH BABU** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-12-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MNS** **APPENDIX** ## **WP(C).No. 6326 of 2011 (M)** ## **PETITIONER'S EXHIBITS:** **EXT.P1: PHOTOCOPY OF THE LETTER BEARING NO.DW/DTX-3/96 DATED 16.5.97 OF MINISTRY OF SURFACE TRANSPORT TO 1ST RESPONDENT** **EXT.P2: PHOTOCOPY OF THE REGULARIZATION ORDER ISSUED TO SHAMSUDDIN SHAH BY 1ST RESPONDET BEARING NO.A4/ELE/REGUL/2000/S.DATED 6.7.2000** **EXT.P3: PHOTOCOPY OF THE RELEVANT EXTRACT OF REGULATION, 2000 DATED 7.8.2000** **EXT.P4: PHOTOCOPY OF THE REQUEST LETTER FOR DE RESERVATION BEARING NO.P3/D-RESERVATION/AE/2000-S DATED 10.11.2000** **EXT.P5: PHOTOCOPY OF TRHE REGULAR PROMOTION ORDER TYO THE PETITIONER AS A.E.(ELECTRICAL)BEARING NO.A4/ELE/99/S DATED 4.12.00** **EXT.P6: PHOTOCOPY OF THE PETITIONER'S REPRESENTATION TO THE 1ST RESPONDENT DATED 27.6.07 FOR REFGIXATGION OF SENIORITY** **EXT.P7: PHOTOCOPY OF THE ADHOC PROMOTION ORDER ISSUED TO THE RESPONDENTS 3 AND 4 ASS.EXE.ENGINEER (ELECTRICAL)BEARING NO.A4/PROMOTION/ADHOC/07/S DATED 16.10.07** **EXT.P8: PHOTOCOPY OF THE ADHOC PROMOTION ISSUED TO THE PETITIONERS AS AE (ELECTRICAL)BEARING NO.A4/PROMOTION/ELE/UTL/09/S DATED 22.07.09** **EXT.P9: PHOTOCOPY OF THE REGULARIZATION ORDER AS A.E.ISSUED TO 3RD RESPONDET BEARING NO.A4/PROMOTION/ELE/2010/S.DATED 22.4.10** **EXT.P10: PHOTOCOPY OF THE REPRESENTATION DATED 22.11.10 TO THE CHAIRMAN COCHIN PORT TRUST** **EXT.P11: PHOTOCOPY OF THE REPLY UNDER R.T.I. ACT BEARING NO.SECY/RTI/AKD/2005/S DATED 21.12.2010** **EXT.P12: PHOTOCOPY OF THE PROBATION DECLARATION ORDER OF 4TH RESPONDENT AS A.E.(ELECTRICAL) BEARING NO.A4/PROBATION/MECHI/98/S.DATED 27.11.03** **EXT.P13: PHOTOCOPY OF THE ORDER OF THE 1ST RESPONDENT BEARING NO.A4/ELE/DAK/10/S DATED 20.1.11** **EXT.P14: PHOTOCOPY OF THE RELEVANT EXTRACT OF O.M.DATED 25.4.98 PUBLISHED IN SWAMY'S COMPILATION ON RESERVATION AND CONCESSION 5TH EDITION.** **RESPONDENTS' EXHIBITS: NIL** **//TRUE COPY//** **P A TO JUDGE** **K. VINOD CHANDRAN, J - - - - - - - - - - - - -- - - - - - - - - - - - - - - - W.P(C) No. 6326 of 2011 M - - - - - - - - - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 9[th] day of December, 2013** ## **J U D G M E N T** The petitioner in the present writ petition seeks assignment of seniority from the date of Ext.P3, i.e, 7.8.2000, and contends that he would then be placed above respondents 3 and 4 in seniority. The brief facts arising in the case are as hereunder:- 2. In the first respondent Port Trust, the hierarchy of vacancies relevant for consideration of the above writ petition, through which the petitioner and the respondents 3 and 4 were appointed and promoted, are Junior Engineer (Electrical) at the lowest level then Junior Engineer(Electrical) Gr.II, Gr.I, Assistant Engineer, and Assistant Executive Engineer. Admittedly, the petitioner joined as Junior Engineer (Electrical) on 21.10.1992 and respondent 3 and 4 were senior to him having been appointed earlier and presumably occupying the post of Junior Engineer Gr.II. In 1997, the respondents 3 and 4 were regularly promoted as Junior Engineer Gr.I, specifically on 8.9.1997. The petitioner then WPC.6326/2011 : 2 : was not entitled to be promoted to the said post and the admitted seniors, being R3 and R4, were promoted. 3. Subsequently in the year 1998 when vacancies arose in the post of Assistant Engineer, in the Scheduled Caste-Scheduled Tribe quota, there were no reserved candidates available for being considered for such promotion. In such circumstance, the respondents 3 and 4 were promoted on an adhoc basis on 20.4.1998 to the said available vacancies. At that point of time, again, the petitioner who was remaining in the cadre of Junior Engineer was not entitled to be considered to the post of Assistant Engineer. The adhoc promotions were made and sanction was also sought for from the Central Government, to de-reserve the two vacancies. It is not disputed that no such sanction was received. It is evident from Ext.P13 that both respondents 3 and 4 were advised to be regularised on 27.6.2000 in the promoted post. 4. Subsequently, Ministry of Surface Transport by Ext.P3 notification approved the Cochin Port Trust Employees (Recruitment, Seniority and Promotions) Amendment Regulations, 2000(Ext.P3). By this Order the petitioner who WPC.6326/2011 : 3 : was a Junior Engineer (Electrical) became entitled to be promoted to the post of Assistant Engineer. Since, as per the amended regulations if no eligible candidates with three years experience was available in the post of Junior Engineer Grade I and Grade II, then, promotions could be made from the category of Junior Engineer (Electrical). The petitioner's promotion was made immediately after the amendment was brought into force, i.e, on 4.12.2000. The petitioner's claim is that at that point of time when the petitioner was promoted to the Post of Assistant Engineer, the respondents 3 and 4 were continuing as Assistant Engineers on an adhoc basis and he ought to have been given seniority over and above them, as from 7.8.2000, the date of Ext.P3 notification. 5. The learned counsel for the petitioner relies on two decisions reported in **State of Punjab v. G.S Gill (AIR 1997 SC 2324)** and **The Flag Officer Commanding-in-Chief v. M.A Rajani & another (JT 1997 (4) SC 212)** to contend that constitutional scheme in giving protection to the reserved category cannot be lightly dealt with by the authorities. The learned counsel also relies on WPC.6326/2011 : 4 : Ext.P14 to contend that the carrying over of vacancies can be made only for three years from the recruitment year or in the case of promotions; the year in which the promotion is made, being considered as the recruitment year. 6. The primary fallacy in considering the claim of the petitioner is that if either respondent 3 or 4 was promoted to the only available Scheduled Caste vacancy, which was in fact, due to the petitioner, then, on the petitioner having been granted the same on 4.12.2000, one of them would have been reverted. Obviously, the respondents 3 and 4 were promoted long prior to Ext.P3 when two vacancies of Scheduled Caste and Scheduled Tribe categories arose in the post of Assistant Engineer. Though no de-reservation orders were received, that did not prejudice the petitioner as such since at that point of time the petitioner was not entitled to be promoted to the said post, for his not being in the zone of consideration. 7. Only later on, by Ext.P3 the petitioner's right to get promoted to the post in the absence of eligible persons, in the higher category arose and the petitioner was granted such promotion. The petitioner having been granted promotion WPC.6326/2011 : 5 : immediately after Ext.P3, cannot contend that he ought to have been adjusted against one of the vacancies which was filled up on an adhoc basis on 20.4.1998. The continuance of the respondents 3 and 4 as also the petitioner in the promoted post, even after implementation of Ext.P3, would only indicate that there was available a scheduled caste vacancy in the cadre of Assistant Engineer to which the petitioner was promoted regularly and accommodated. He, obviously cannot have any claim to a vacancy that existed in the year 1998, especially since since respondents 3 and 4 were continued in their promoted post. 8. One other aspect which assumes significance is that, the petitioner while being promoted to the post of Assistant Engineer on 4.12.2000 was aware of the fact that two other persons were promoted earlier in 1998, one of which was in a vacancy entitled to Scheduled Caste candidate. The petitioner neither claimed such a vacancy at that point of time, nor did he seek for a seniority from the date of Ext.P3 notification. The contention of the petitioner is that since the 1[st] respondent had sought for de-reservation the petitioner WPC.6326/2011 : 6 : was awaiting such de-reservation orders and that he was aware of the fact that de-reservation orders were not passed, only by Ext.P13 dated 20.1.2011. The mere fact that de-reservation was sought for, cannot dis-entitle the petitioner because even going by the binding precedent in **State of Punjab v. G.S Gill (AIR 1997 SC 2324)** , if there was an eligible candidate available in the feeder category for promotion, who was entitled to reservation then there cannot be de-reservation of such post resorted to and the said candidate ought to be granted such reserved post. Considerable reliance for this proposition is also available in **The Flag Officer Commanding-in-Chief v. M.A Rajani & another (JT 1997 (4) SC 212)** . 9. The petitioner slept over his rights and made a representation only in the year 2007, i.e, by Ext.P6 dated 27.6.2007. Even then, the petitioner did not approach this Court to get his grievance redressed. Later to Ext.P6, the respondents 3 and 4 were again promoted as Assistant Engineer (Electrical) by Ext.P7 order dated 16.10.2007. The petitioner too was promoted by Ext.P8 on 24.7.2007 to the post of Assistant Engineer (Electrical). Again, the WPC.6326/2011 : 7 : petitioner raised no dispute against the promotion of respondents 3 and 4, to the post of Assistant Engineer (Electrical), two years prior to his own promotion. The petitioner, hence, has to be considered as having slept over his rights. It is trite that in service jurisprudence every person who is promoted to a particular post and occupying the same for long period, is entitled to some certainty as to the seniority in the cadre. The petitioner's alleged cause of action on Ext.P13 would not be sufficient to condone the delay caused in asserting the petitioner's claim, if any at all. In fact the claim raised by the petitioner has been found against the petitioner, by this Court herein above. On both grounds,i.e., the petitioner's ineligibility to be treated as senior to respondents 3 and 4; as also the delay, the writ petition is found to be devoid of merit. Writ petition is dismissed. No costs. Sd/- **(K. VINOD CHANDRAN, JUDGE)** jma //true copy// P.A to Judge