Ali Akbar v. The Chairman & Managing Director, Kerala State Road Transport Corporation and others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE AMIT RAWAL`** ``` MONDAY, THE 22[ND] DAY OF JANUARY 2024 / 2ND MAGHA, 1945 ``` ## **`WP(C) NO. 311 OF 2015`** ## **`PETITIONER:`** ``` ALI AKBAR AGED 37 YEARS S/O. BASHEER AHAMED, K.V. HOUSE, PARAL, KOOTHUPARAMBA P.O., KANNUR DISTRICT-670643 (CONDUCTOR, KSRTC, KANNUR DEPOT). ``` ``` BY ADV SRI.K.P.JUSTINE (KARIPAT) ``` ## **`RESPONDENTS:`** - `1 THE CHAIRMAN & MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION` - `TRANSPORT BHAVAN, EAST FORT, THIRUVANANTHAPURAM-695023.` - `2 THE EXECUTIVE DIRECTOR (ADMINISTRATION) KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, EAST FORT, THIRUVANANTHARUAM-695023.` - `3 THE ASSISTANT TRANSPORT OFFICER KERALA STATE ROAD TRANSPORT CORPORATION, KANNUR DEPOT.` ## **`OTHER PRESENT:`** ``` SRI DEEPU THANKAN SC KSRTC ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C).No.311 of 2015 2 ## **AMIT RAWAL J.** **-------------------------------------** W.P.(C).No.311 of 2015 **---------------------------------------** Dated this the 22[nd] day of January, 2024 ## **JUDGMENT** Ext.P6 order dated 20[th] of June, 2014 of the Chairman and Managing Director re-arranging the gradation rank of the petitioner from 2249 to 5169B as per the gradation list dated 1[st] of April, 2009 is under challenge. The petitioner had availed Leave Without Allowance (LWA) for other jobs abroad for a period of 10(ten) years. It is contended that the order impugned was subject to the decision of the matters pending in the High Court which is resulted into a decision by a Full Bench of this Court in **Shaji Sanjayi Nottithodi v.** **Managing Director, KSRTC and others** [2017 (3) KHC 631] wherein it has been held that, if a person avails leave without allowance his seniority will be protected, but the prescribed grade will have to be acquired for cadre promotion. 2. The learned Standing Counsel for the KSRTC submits that the order impugned was of the year 2014 and W.P.(C).No.311 of 2015 3 in view of the aforementioned judgment, the KSRTC must have by this time issued a separate gradation or seniority list and therefore the present case will become infructuous. 3. The learned counsel appearing on behalf of the petitioner submits that he has no information with regard to such new list. ## 4. The impugned order (Ext.P6) reads as follows:- _“Sri KB Ali Akbar, conductor of Kannur Depot availed LWA for employment abroad w.e.f. 28.6.2003 to 30.11.2013. As per Para 3 of Clause XVI of the Pay Revision Agreement of 2008 and as per Clause 2, Para 1 (3) and (4) of order No.PL1 7732/09 dated 20.3.2009, the rank is reassessed as below:_ _The rank No.2249 of Sri Ali Akbar as per the gradation list 1.4.2009, is rearranged as Sl.No.5169 B. This rearrangement will be changed in accordance with the judgment regarding the seniority of conductors, of the Hon'ble High Court. The rearranged seniority should be recorded in the book along with this order._ _Sd/-_ _Manager (Accounts) in-charge of E.D (A)”_ ## 5. The operative portion of the judgment rendered by the Full Bench reads as follows:- W.P.(C).No.311 of 2015 4 _“13. Coming to the issue relating to cadre promotion, there cannot be any dispute to the fact that generally grade promotion provides monetary incentives without raising the rank of the employee, whereas the cadre promotion not only provides for monetary incentives but also raises the rank of the employee. The recruitment rules which are produced by the Corporation in W.A.No.1128 of 2015 indicate that only the incumbents in the highest grade of the feeder category are entitled to be considered for cadre promotion to supervisory posts. Since the period spent by an incumbent on Leave Without Allowances is not liable to be reckoned as qualifying service for grade promotions, on rejoining duty, he is not entitled to be promoted to the grade of the cadre where his immediate junior has reached in the meanwhile, though he is notionally promoted to that grade along with his junior. Notional promotion is given to the senior, as stated above, only to maintain the same sequence of ranking in the promoted post as in the lower post, for whatever it is worth and he is entitled to promotion to that grade only on acquiring the requisite qualifying service. The question therefore, is, whether the senior can be considered as a person who has reached the appropriate grade merely on account of the notional promotion secured by him so as to claim cadre promotion in preference to his junior. In this context, the view taken by the Division Bench in Abdul Razak (supra), assumes relevance. In the said case, the issue that arose for consideration was whether a Government servant who rejoins duty after availing Leave Without Allowances for taking up employment abroad is entitled to the benefit of grade promotion which his immediate junior has acquired in the meanwhile on the strength of the seniority protected in terms of R.4 of Appendix XIIA of Part I KSR. The Division Bench had answered the said issue in the negative holding that a person may retain his position of seniority for whatever it is worth and the same does not automatically lead to a presumption that he is to be deemed as having rendered service all through out._ W.P.(C).No.311 of 2015 5 _Paragraphs 6 and 7 of the said judgment read thus:_ _"6. That a person may retain his position of seniority for whatever it is worth does not automatically lead to a presumption that he is to be deemed as having rendered service all throughout. Conferment of grade promotion is for ensuring that stagnation is avoided and disgruntlement does not result. After rendering service for a specified period in a post, an officer is deemed to have come over to the higher grade. The absence of a higher post itself is immaterial for giving such benefit. It respect of persons, who are able to secure promotion, benefit of grade promotions is not admissible. Thus the benefit is introduced with clear insight._ _7. R.88 as also R.110(b) of Part I K.S.R. prescribe that Leave Without Allowances could be availed of when no other leave is admissible to the officer. Also when the officer applies for the grant of Leave Without Allowances, it may be available. Naturally it has to be presumed that the officer is aware of the possibility of set backs in his service, as he is voluntarily keeping away from service. There is no case for the appellant that he had been deputed to any public sector enterprise. He had voluntarily availed of leave for employment abroad. It will not therefore be justifiable on his part to contend that notwithstanding all these he will be entitled, to grade promotion, as if a bonanza for having joined Government service. He was never in public employment during such period and had nor suffered stagnation, as is normally understood. The wordings of R. 4 of Appendix XII-A are sufficiently clear to show that the benefit might not have been admissible to such an officer. These, we find, are sufficient reasons to reject the contentions urged."_ _14. The ratio in the said case, therefore, is that the senior who has not rendered the requisite period of service is not entitled to be treated as a person who was acquired the appropriate grade merely on the strength of his seniority protected in terms of_ W.P.(C).No.311 of 2015 6 _R. 4 of Appendix XIIA of Part I KSR. We are in agreement with the view taken by the Division Bench in the said case. If a Government servant who has not rendered the requisite period of service is not entitled to be treated as a person who has acquired the appropriate higher grade on the strength of his seniority protected in terms of R.4 of Appendix XIIA of Part I KSR, an employee of the Corporation who has not acquired the qualifying service for claiming promotion to the higher grade cannot also be treated as a person who has acquired the higher grade on the strength of his seniority protected in terms of the identical provision contained in Ext. P5 order of the Corporation. If that be so, a senior who has not secured the highest grade in the feeder category cannot be held to be entitled to claim promotion to the next higher cadre._ ## _xxx_ ## _xxx_ _17. As noted above, it is made clear in Ext. P5 order that the period of Leave Without Allowances will not be treated as duty for any purpose whatsoever. If the period of Leave Without Allowances is not liable to be treated as duty for any purpose whatsoever, acceptance of the case of the employees that they are entitled to cadre promotion solely on the strength of their seniority protected in terms of Ext. P5 order would amount to a bonanza for not discharging the duties attached to the post, in this case as well. It is all the more so since only incumbents who have acquired the prescribed length of qualifying service to reach the highest grade in the cadre are contemplated to be given the right to be considered for cadre promotion._ _18. In the light of the aforesaid discussion, we are inclined to accept the view taken by the learned Single Judge in the batch of writ petitions from which W.A. No. 302 of 2014 arises. However, it needs to be clarified that if the employees who rejoin duty after availing Leave Without_ W.P.(C).No.311 of 2015 7 _Allowances are promoted to the higher cadre in course of time on acquiring the requisite qualifying service, they would be entitled to claim seniority in the higher cadre on the strength of Ext. P5 order, for whatever it is worth, except over those juniors who got promoted while they were on Leave Without Allowances. In the circumstances, Writ Appeal No. 302 of 2014 is dismissed and Writ Appeal Nos. 936, 1044, 1128, 1147, 1165, 1244, 1274, 1345, 1349, 1355, 1363, 1438, 1451, 1491 & 1617 of 2015 as also Writ Appeal No. 566 of 2014 are allowed, setting aside the judgments impugned therein, subject of course to the clarification made in paragraph 18 above.”_ In this view of the matter, writ petition is ordered to be disposed off, with the observation that, the respondents shall issue the fresh gradation list or seniority list, in accordance with the aforesaid judgment of the Full Bench, if not already done. Sd/- **AMIT RAWAL JUDGE** skj W.P.(C).No.311 of 2015 8 ## **APPENDIX OF WP(C) 311/2015** PETITIONER’S EXHIBITS EXHIBIT P1 TRUE COPY OF THE DUTY PASS ISSUED TO THE PETITIONER. EXHIBIT P2 TRUE COPY OF THE ORDER NO.D.DIS. PLA2015506/2003 DATED 20.6.2003. EXHIBIT P3 TRUE COPY OF THE ORDER NO.P.DIS.PL-11-17499/08 DATED 16.7.2008. EXHIBIT P4 TRUE COPY OF THE REPRESENTATION DATED 12.11.2013 SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT CORPORATION. EXHIBIT P5 TRUE COPY OF THE ORDER NO.OL-11-017499/13 DATED 28.11.2013. EXHIBIT P5(a) TRUE ENGLISH TRANSLATION OF EXT.P5. EXHIBIT P6 TRUE COPY OF THE TRUE COPY OF THE MEMORANDUM NO.O; 18-33621/12 DATED 20.6.2014. EXHIBIT P6(a) TRUE ENGLISH TRANSLATION OF EXT.P6. EXHIBIT P7 TRUE COPY OF THE APPENDIX XII A OF KSR PART 1 OF KERALA SERVICE RULES. EXHIBIT P8 TRUE COPY OF THE PROCEEDINGS NO.OLA-10001575/84/R. DIS. DATED 21.8.1984. EXHIBIT P9 TRUE COPY OF THE PAGE NOS. 7&8 FO THE GRADE PROMOTION RULES. EXHIBIT P10 TRUE COPY OF THE CIRCULAR NO.OL7-000175/2010 DATED 6.7.2010 ISSUED BY THE RESPONDENTS. EXHIBIT P10(a) TRUE ENGLISH TRANSLATION OF EXT.P10. EXHIBIT P11 TRUE COPY OF THE JUDGMENT DATED 12.3.2003 IN O.P.NO.32006/2001 AND O.P.NO.14175/2002 DATED 12.3.2003. EXHIBIT P12 TRUE COPY OF THE JUDGMENTS IN W.A.NO.1167/2003 DATED 13.7.2008 AND W.A.NO.1179/2005 DATED 13.7.2008. EXHIBIT P13 TRUE COPY OF THE JUDGMNET IN W.A.NO.1810/2013 DATED 20.1.2014. EXHIBIT P14 TRUE COPY OF THE JUDGMENT IN WPC NO.13718/2008 DATED 14.7.2009. EXHIBIT P15 TRUE COPY OF THE PROMOTION ORDER NO.OL-1023637/10 DATED 15.10.2010. EXHIBIT P16 TRUE COPY OF THE JUDGMENT AS REPORTED IN 2008(1) KLT 712. EXHIBIT P17 TRUE COPY OF THE JUDGMENT IN WPC NO.17423/2013 DATED 13.1.2014. EXHIBIT P18 TRUE COPY OF THE INTERIM ORDER DATED 14.8.2014 IN WPC NO.9911/2014.