High Court of KeralaSingle Judge2017-02-14Writ petition disposed; relief sought to quash ...

Anof Kumar K.S. v. Kerala State Textiles Corporation Limited and Others

Case / Petition Number:WP(C).No. 23396 of 2013 (Y)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Anu Sivaraman
Judgment Date: 2017-02-14
Court Decision / Holding: The writ petition is disposed with the following: (i) The petition to quash Exhibit P5 and the promotions is declined. (ii) The 2nd respondent (State) is directed to examine and decide on the approval of the service rules said to be adopted by the 1st respondent’s Director Board and to take a decision within six months. (iii) The 1st respondent is to consider such claims for promotion, if any, as per law. The court emphasizes the need for finalized service regulations and directs steps to be taken for public-interest and employee interests. No relief is granted to the petitioner on promotion beyond what law allows, but a framework for service rules is to be established.
Final Disposition: Writ petition disposed; relief sought to quash promotions not granted; directions issued to examine and approve service rules within six months; claims for promotion to be considered under law by the 1st respondent.

Parties to the Case

Appellants / Petitioners

Anof Kumar K.S.

Respondents

Kerala State Textiles Corporation Limited
State of Kerala
Aby Thomas

Legal Representation & Advocates

Counsels for Petitioners

• Adv. Ajith Krishnan

Counsels for Respondents

• Adv. V.E. Abdul Gafoor
• Adv. P.U. Shailajan
• Adv./Sen. Government Pleader Mary Beena Joseph
• Adv. Indu Susam Jacob

Case Synopsis & Summary

This writ petition (WP(C).No. 23396 of 2013) before the Kerala High Court, presided over by Hon. Justice Anu Sivaraman, challenges the promotions of the 3rd respondent (Aby Thomas) to higher managerial posts within the Kerala State Textile Corporation Limited. The petitioner asserts seniority over the 3rd respondent, who joined later, and claims that despite this seniority he was denied promotion to Assistant Manager (Spinning) and Deputy Manager (Spinning). The petitioner also attacks the validity of Exhibit P5 (promotion of the 3rd respondent to Deputy Manager on 21.2.2011) as well as the underlying promotion policy. The respondent 1 (KSTCL) maintains that there is no formally approved service regulation; draft service rules exist and the promotion of the 3rd respondent was based on a merit-cum-seniority criterion established by the Board and the selection committee’s 2008 decision (confirmed 2009). The respondent argues that the belated challenge to promotions, especially dating back to 2008, is unsustainable. The court notes the absence of finalized service regulations and directs the Government (2nd respondent) to consider approval of the service rules allegedly adopted by the Director Board of the corporation within six months. While dismissing the petitioner’s prayer to quash the promotions, the court orders a review of service rules and leaves room for claims to be considered under law by the 1st respondent. The petition is disposed accordingly with these directions.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends seniority over the 3rd respondent, who joined later, and that his probation and subsequent promotions were not properly considered. He asserts that the draft service rules or regulations were not finalized and seeks quashing of Exhibit P5 (promotion to Deputy Manager) and a mandamus to promote him as Assistant Manager (Spinning) from 8.6.2008. He argues that promotions were not in accordance with law and that the absence of approved service rules invalidates the challenged promotions; given belated challenges, relief should be granted only in accordance with law or after proper rule formation.

Contentions of Respondents

Respondents urge dismissal of the petition on the ground that the petitioner’s challenge to promotions is time-barred and the promotions were based on merit-cum-seniority under draft service rules approved by the Board, albeit not yet statutorily finalized. They rely on the Board minutes (R1) and decisions (2008, 2011) to show that the 3rd respondent’s promotions were proper, and contend that the Government’s role is to approve service rules; given the late challenge, relief cannot be granted. The court is urged to direct consideration of service rules by the State (2nd respondent) and to leave promotion claims to be considered in accordance with law by the 1st respondent.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Udai Chand v. Sanker Lal	AIR 1978 SC 765	Positive	Court relies on Udai Chand to support the proposition that in cases where a writ petitioner has made false assertions, courts may refuse jurisdiction.
Shiba Shankar Mohapatra v. State of Orissa	2010(12) SCC 471	Mentioned Only	Cited by counsel to argue that the respondent’s seniority/promotions may have become final; court does not rely on this case to dispose of the petition.
Lakshmi Devi P.N. v. The Commissioner, Guruvayur Devaswom	2015(1) KLT SN 156	Mentioned Only	Cited by counsel for similar contention regarding finality of promotions; court does not base the decision on this case.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **TUESDAY, THE 14TH DAY OF FEBRUARY 2017/25TH MAGHA, 1938** **WP(C).No. 23396 of 2013 (Y) ----------------------------** ## **PETITIONER(S):** ## **-------------** **ANOF KUMAR K.S., JUNIOR MANAGER (SPINNING), KOTTAYAM TEXTILES, KERALA STATE TEXTILE CORPORATION LTD., KOTTAYAM, RESIDING AT KILIKKATTUTHOTTATHIL, MANAKADU P.O., THODUPUZHA - 685 608.** **BY ADV. SRI.AJITH KRISHNAN** **RESPONDENT(S):** **--------------** **1. KERALA STATE TEXTILE CORPORATION LIMITED, REPRESENTED BY MANAGING DIRECTOR, VELLYAMBALAM, THIRUVANANTHAPURAM - 695 010.** **2. STATE OF KERALA,** **REPRESENTED BY THE SECRETARY, INDUSTRIES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** - **3. ABY THOMAS,** **MANAGER, TRIVANDRUM SPINNING MILLS, BALARAMAPURAM, THIRUVANANTHAPURAM-695 501. (CORRECTED)** **ABY THOMAS, MANAGER,** **MALAPPURAM CO-OPERATIVE SPINNING MILLS, P.O.BOX NO.206, DOWN HILL POST, MALAPPURAM - 676 519, RESIDING AT PUTHENMADOM HOUSE, KADAMMANITTA, VIA PATHANAMTHITTA - 689 668.** - **ADDRESS OF R3 CORRECTED AS PER ORDER DTD.19.12.2013 IN IA.NO.16973/2013 IN THE WPC.** **R1 BY ADVS. SRI.V.E.ABDUL GAFOOR, SC** **SRI.P.U.SHAILAJAN, SC R2 BY SENIOR GOVERNMENT PLEADER SMT.MARY BEENA JOSEPH R3 BY ADV. SMT.INDU SUSAN JACOB** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14-02-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **msv/** **WP(C).No. 23396 of 2013 (Y) ----------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS ----------------------EXT.P1: TRUE COPY OF THE ORDER DATED 21/3/1996 ISSUED BY THE 1ST RESPONDENT EXT.P2: TRUE COPY OF THE ORDER NO.KT-M/97-98 DATED 3/5/1997 ISSUED BY THE 1ST RESPONDENT. EXT.P3; TRUE COPY OF THE ORDER NO.P/227/56/5276 DATED 1/3/2006 ISSUED BY THE 1ST RESPONDENT. EXT.P4: TRUE COPY OF THE MEMORANDUM DATED 29/8/2006 ISSUED BY THE 1ST RESPONDENT TO 3RD RESPONDENT.** - **EXT.P5: TRUE COPY OF THE ORDER DATED 21/2/2011 BY WHICH 3RD RESPONDENT WAS PROMOTED TO THE POST OF DEPUTY MANAGER (SPINNING)** - **EXT.P6: TRUE COPY OF THE REPRESENTATION DATED 29/8/2011 SUBMITTED BEFORE THE 1ST RESPONDENT** **EXT.P7: TRUE COPY OF THE REPRESENTATION DATED NIL SUBMITTED BEFORE THE 2ND RESPONDENT.** ## **RESPONDENT(S)' EXHIBITS** - **-----------------------** **EXT.R1(a): COPY OF THE MINUTES OF THE HR COMMITTEE MEETING HELD ON 1.12.2008.** **EXT.R1(b): COPY OF THE MINUTES OF THE BOARD OF DIRECTORS HELD ON 16.1.2009.** - **EXT.R3(a): TRUE COPY OF THE MERIT LIST DTD.29.2.1996 PUBLISHED BY THE COMMITTEE** - **EXT.R3(b): TRUE COPY OF THE LETTER DTD.25.3.1997 EXTENDING THE PETITIONERS PROBATION IN THE POST OF SUPERVISOR.** - **EXT.R3(c): TRUE COPY OF THE LETTER DTD.29.8.1997 CONFIRMING THE PETITIONER AS SUPERVISOR TEXTILES.** - **EXT.R3(d): TRUE COPY OF THE LETTER DTD.23.8.1993 APPOINTING THE PETITIONER AS ASST. SUPERVISOR.** **Msv/** **-2-** **-2-** ## **WP(C).No. 23396 of 2013 (Y)** **----------------------------** **EXT.R3(e): TRUE COPY OF THE MEMORANDUM DTD.29.5.2007 DECLARING THE PROBATION OF THE 3RD RESPONDENT IN THE POST OF JUNION MANAGER (SPINNING).** **EXT.R3(f): TRUE COPY OF THE MEMORANDUM DTD.7.7.2010 DECLARING THE PROBATION OF THE 3RD RESPONDENT AS ASST. MANAGER, TECHNICAL. EXT.R3(g): TRUE COPY OF THE CERTIFICATE OF APPRECIATION ISSUED BY 1ST RESPONDENT.** **EXT.R3(h): TRUE COPY OF THE MEMORANDUM DTD.15.3.2012 DECLARING THE PROBATION OF THE 3RD RESPONDENT IN THE POST OF DEPUTY MANAGER.** **EXT.R3(i): TRUE COPY OF THE G.O.(RT) NO.777/2013/ID DTD.18.6.2013 APPROVING THE DEPUTATION OF THE 3RD RESPONDENT AS MANAGER, TRIVANDRUM SPINNING MILLS. EXT.R3(j): TRUE COPY OF THE G.O.(RT) NO.1331/2014/ID DTD.28.11.2014.** ## **//TRUE COPY//** ## **P.S.TO JUDGE** ## **Msv/** ## **ANU SIVARAMAN, J. ----------------------------------------------W.P(C).No. 23396 of 2013 ----------------------------------------------Dated this the 14[th] February, 2017** ## **JUDGMENT** The prayers in this writ petition are as follows: - _“i. call for the records leading to Exhibit P5 and quash the promotions of Assistant Manager (Spinning) and Deputy Manager (Spinning) given to 3[rd] respondent by writ of certiorari._ - _ii. issue a writ of mandamus directing 1[st] respondent to promote the petitioner to the post of Assistant Manager (Spinning) with effect from 8.6.2008 immediately.”_ 2. It is submitted that the petitioner and the 3[rd] respondent were appointed as Supervisor (Textiles) in the 1[st] respondent Corporation from a common select list. The petitioner contends that he is senior to the 3[rd] respondent having joined service on 21.3.1996 while the 3[rd] respondent had joined only on 16.4.1996. He further claims that his probation has been declared on 26.3.1997 and the probation of the 3[rd] respondent was declared only on 15.4.1997. Both of them were promoted as Junior Manager on 1.3.2006. The petitioner claims that thereafter, while the 3[rd] respondent was promoted to the post of Assistant Manager and later as Deputy 2 _**WP(C).23396/13**_ Manager, the petitioner was denied such promotion. In the above circumstances, the petitioner challenges Exhibit P5 order dated 21.2.2011 promoting the 3[rd] respondent as Deputy Manager and seeks promotion to the post of Assistant Manager and Deputy Manager. 3. A statement has been filed on behalf of the 1[st] respondent stating that the petitioner's probation had been extended and had been declared as having been satisfactorily completed only with effect from 1.7.1997. It is further stated that there is no approved service regulations in the 1[st] respondent Corporation, but a draft regulations were approved by the Executive Committee. It is further stated that the promotion of the 3[rd] respondent as Assistant Manager was based on the selection committee meeting held on 1.12.2008, which was confirmed by the Board in its meeting held on 16.1.2009. The minutes of the Board meeting is produced. It is contended that merit-cum-seniority is the criterion followed in the case of promotion to officers and it is on that basis that the 3[rd] respondent had been preferred for promotion as Assistant Manager over the petitioner. It is further stated that the promotion as Assistant Manager of the 3[rd] respondent having _**WP(C).23396/13**_ 3 been effected with effect from 8.6.2008, the long delay in challenging the promotion granted to the 3[rd] respondent would disentitle the petitioner to challenge the same after more than five years. 4. The 3[rd] respondent has filed a counter affidavit contending that the statement of facts made by the petitioner in this writ petition are incorrect and misleading and that the petitioner has made such wrong submissions with the intention to mislead the Court. It is contended that the 3[rd] respondent was ranked higher to the petitioner in the select list prepared for appointment to the post of Supervisor (Textile) and that he had joined duty within the joining time. It is further stated that the 3[rd] respondent had been promoted in 2008 and 2011 respectively on the basis of the draft service rules and such promotions had remained unchallenged by the petitioner. In the above circumstances, it is contended that the 3[rd] respondent is entitled to sit back and consider that his seniority and promotion have become final. The learned counsel appearing for the 3[rd] respondent would place reliance on the decision of the Apex Court in _**Udai Chand v. Sanker Lal**_ [AIR 1978 SC 765] to contend that in cases where the petitioner had _**WP(C).23396/13**_ 4 made false assertions in writ petitions, the courts would be justified in refusing jurisdiction. In support of the contention that the 3[rd] respondent is entitled to sit back and consider that his promotion has become final, the learned counsel would rely on the decisions reported in _**Shiba Shankar Mohapatra v. State of Orissa**_ [2010(12) SCC 471] and _**Lakshmi Devi P.N. v. The Commissioner, Guruvayur Devaswom**_ [2015(1) KLT SN 156]. 5. I have considered the contentions advanced. It is the specific contention of the 1[st] respondent that the draft service rules approved by the 1[st] respondent provided for appointment to the posts of officers under the 1[st] respondent on the basis of merit and seniority. It is contended that the 3[rd] respondent had been appointed as Assistant Manager as early as on 8.6.2008 on the basis of the promotion policy in place. It is further submitted that this promotion as well as later promotion of the 3[rd] respondent as Deputy Manager on 21.2.2011 had not been challenged by the petitioner in time. In the above view of the matter, it appears that the challenge raised against the promotion of the 3[rd] respondent in 2008 which evidently was the reason for his promotion as Deputy Manager in 2011 is 5 _**WP(C).23396/13**_ highly belated. The contentions raised in the writ petition being against the fixation of seniority and the promotion granted as early as in the year 2008, I am of the view that the relief prayed for in this writ petition cannot be granted. However, before parting this case, I am of the opinion that this is a fit case where the Government should consider the issue of the notification of service rules said to have been approved by the Board of the 1[st] respondent Corporation. The 1[st] respondent being a Government controlled Corporation, I am of the view that the 2[nd] respondent Government has a responsibility to see whether the service rules framed by the Company are being followed in the matter of appointments, promotions and the like. In the above view of the matter, the 2[nd] respondent is directed to take appropriate steps for the consideration of the question of approval of the service rules said to be adopted by the Director Board of the 1[st] respondent Company and to take a decision thereon within a period of six months from the date of receipt of a copy of this judgment. Such steps shall be taken by the 2[nd] respondent having regard to the interest of the employees of the Corporation as also in public interest. Though 6 _**WP(C).23396/13**_ learned counsel for the petitioner seeks directions to consider his claim for promotion as against existing vacancies, I am of the opinion that it is for the 1[st] respondent to consider such claims, if any, raised in accordance with law. The writ petition is ordered accordingly. sd/- **ANU SIVARAMAN JUDGE** _vgs14/2_