Bibin M. v. Cochin Port Trust

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **WEDNESDAY, THE 04TH DAY OF SEPTEMBER 2019 / 13TH BHADRA, 1941** **WP(C).No.36512 OF 2018(L)** ## **PETITIONER:** **BIBIN M. (STAFF NO.7149) AGED 35 YEARS FOREMAN (MARINE CRAFT), SE(M), R AND M DIVISION, MECHANICAL ENGIEERING DEPARTMENT, COCHIN PORT TRUST, KOCHI-682003.** **BY ADVS. SRI.K.JAJU BABU (SR.) KUM.NEETU VINOD SMT.M.U.VIJAYALAKSHMI** ## **RESPONDENTS:** **1 COCHIN PORT TRIUST WILLINGTON ISLAND, KOCHI-682009 REPRESENTED BY ITS SECRETARY. 2 THE CHIEF MECHANICAL ENGINEER COCHIN PORT TRUST, WILLINGTON ISLAND, KOCHI- 682009.** **BY ADVS. SRI.V.ABRAHAM MARKOS SRI.ABRAHAM JOSEPH MARKOS SRI.ISAAC THOMAS SRI.P.G.CHANDAPILLAI ABRAHAM** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17.07.2019, THE COURT ON 4.9.2019 DELIVERED THE FOLLOWING:** **WP(C).No.36512 OF 2018(L) 2** ## **JUDGMENT** The petitioner who is working as Foreman (Marine Craft) in the first respondent has approached this Court challenging Ext.P8 order and seeking directions for grant of promotion to the post of Foreman with effect from 1.3.2013 as proposed in Exts. P2 and P7 with all consequential benefits. 2. The petitioner submits that he was working as Motor Mechanic (HSK-1) under the first respondent. A regular vacancy of Foreman (Marine Craft) arose on 1.03.2013. The petitioner was a scheduled caste candidate and was entitled for promotion to the said post. Ext.P2 proposal was made by the Superintending Engineer for promoting the petitioner. However, due to an interim order issued in WP(C)No.5268 of 2013, promotion was not ## **WP(C).No.36512 OF 2018(L) 3** granted. By Ext.P3 judgment, this Court found that the claim raised by the petitioner in the writ petition for appointment as Foreman in the Marine Diesel Section in the 7[th] point in the roster was liable to be considered by the respondents and that the respondents could not appoint any other person to the post of Foreman. The petitioner herein who was the third respondent in the writ petition took up the matter in appeal and by Ext.P4 judgment in writ appeal, Ext.P3 was set aside and the writ petition was dismissed. Thereafter, by Ext.P5 proceedings, the petitioner was promoted as Foreman (Marine Craft). 4. The learned counsel for the petitioner would submit that the holding up of the promotion of the petitioner was on account of no fault of his own and that in view of Ext.P2 recommendation issued by the Superintending ## **WP(C).No.36512 OF 2018(L) 4** Engineer, the petitioner was clearly entitled for promotion from the date of occurrence of vacancy. Though Ext.P7 request was made by the petitioner, his claim has been turned down by Ext.P8 on the ground that Service Rules does not allow promotion with retrospective effect. 4. A counter affidavit has been placed on record by the respondents. It is stated therein that the Cochin Port Trust has framed its own regulations with respect to the service conditions of its employees. In the absence of regulations covering specific points, the first respondent has adopted the Central Government Rules to govern the service conditions of its employees. It is stated that as far as promotions are concerned, the Establishment and Administrative Rules for the Central Government Offices are applicable to the Cochin Port Trust. It is stated that Rule ## **WP(C).No.36512 OF 2018(L) 5** 6.4.4 of the said Rules, specifically provides that while promotions will be made in the order in the consolidated select list, such promotions will have only prospective effect, even in cases where the vacancies relate to earlier years. It is stated that promotion of the petitioner was held up only due to divisional interruption and that immediately after Ext.P4 judgment was rendered on 3.4.2017, the petitioner's case had been considered and he was granted promotion with effect from 20.3.2018. It is stated that in view of the clear provisions of the rules, the petitioner could have no claim for promotion on any earlier date. It is also contended that the rules with regard to the qualifications for promotions have undergone a change and the petitioner's claim for promotion had been considered in accordance with Ext.R1(b) ## **WP(C).No.36512 OF 2018(L) 6** amended rules. It is stated that the petitioner had not been considered for promotion on any earlier dates prior to Ext.P5 and that on the petitioner being considered for promotion and being found eligible in terms of Ext.R1(b) rules, he had been granted the promotion. 5. The learned counsel for the petitioner relies on several decisions of this Court as well as of the Apex Court to contend that promotion is liable to be granted with effect from the date of occurrence of the vacancy. 6. However, the learned Standing Counsel appearing for the first respondent would contend that the said decisions are construing the provisions of the Kerala State and Subordinate Service Rules as well as the Kerala Education Rules and is a case where there is a clear provision in the Rules that ## **WP(C).No.36512 OF 2018(L) 7** promotions are to be made only prospectively even where the vacancies are already in existence, the said decisions can have no application. 7. Relying on the decisions of the Apex Court in _**Union of India and Others v. N.C.Murali and Others [2017 KHC 2740 SC],**_ the learned Standing counsel would contend that in the situation where retrospective effect is not contemplated by the Rules, directions to give retrospective promotions and retrospective seniority with effect from the date of arising of the vacancy was found by the Apex Court to be completely unjustified and directions so issued were set aside. 8. The learned counsel for the petitioner would also place reliance on judgment of learned Single Judge of this Court in WP(C)No.9420 of 2016 where the claim for ## **WP(C).No.36512 OF 2018(L) 8** retrospective promotions with effect from the date of occurrence of vacancy had been granted in the case of promotion to the post of Assistant Foreman (PH) in the respondent Board itself. 9. The learned Standing Counsel would seek to distinguish the said decision on the ground that the factual situation was one where the DPC had already met and considered the petitioner and found him eligible for promotion to a sanctioned post of Assistant Foreman which had been lying vacant since 1.5.2015. Thereafter, the petitioner had been promoted as Assistant Foreman, but only with prospective effect from 8.1.2019. In the instant case, the learned Standing Counsel would contend that there was no consideration of the claim of the petitioner for promotion prior to Ext.P5 and that as such, in the light ## **WP(C).No.36512 OF 2018(L) 9** of the clear provision of the rules, there can be no directions issued for a retrospective promotion. 10. I have considered the contentions advanced. It is the specific and uncontroverted case of the respondents that Rule 6.4.4 of the Establishment and Administration Rules for Central Government Offices which are made applicable to the Cochin Port Trust provides that the promotions shall have only prospective effect even in cases where vacancies relate to earlier dates. The decisions relied on by the learned counsel for the petitioner do not consider such a factual situation. The decision of this Court in WP(C)No.9420 of 2016 also considers the situation where the petitioner had been considered by the DPC and had been found fit and was recommended for ## **WP(C).No.36512 OF 2018(L) 10** promotion on 16.7.2015. The facts of the said case, as disclosed in the judgment, show that the DPC had recommended the petitioner for promotion with effect from the date of the meeting of the DPC i.e, 15.7.2015. However, promotions were effected only long thereafter, i.e, after three years and the promotions were granted only with prospective effect from that date. 11. In the instant case, the situation is different. The vacancy admittedly had arisen on 1.3.2013. By Ext.P2, the Superintending Engineer had forwarded the name of the petitioner as the Scheduled Caste candidate in the feeder category with required qualifications as being eligible to be considered for promotion as Foreman. However, before any such consideration for promotion could be done, WP(C)5628 of 2013 was filed and ## **WP(C).No.36512 OF 2018(L) 11** there was an interim order interdicting the promotions to the post. Ext.P3 judgment was rendered on 8.12.2016 allowing the writ petition. The petitioner herein appealed against Ext.P3. By Ext.P4 judgment dated 3.4.2017, the appeal was allowed and the writ petition came to be dismissed. Thereafter, the petitioner was considered for promotion and Ext.P5 order was passed, promoting the petitioner with effect from the date of the order against the existing vacancy. 12. In the instant case, the respondents had raised a specific case that Ext.R1(b) amended rules were to be applied for considering the claim of the petitioner for promotion. The petitioner, being qualified in terms of Ext.R1(b) also, was promoted, considering of his eligibility. 12. In view of the fact that the rules **WP(C).No.36512 OF 2018(L) 12** specifically provide that the promotions can only be prospective and in view of the fact that the petitioner has been considered for promotion for the first time only by Ext.P5 proceedings, I am of the opinion that the claim raised by the petitioner for promotion with retrospective effect from the date of occurrence of vacancy and for consequential benefits is not a tenable claim. The writ petition fails and the same is accordingly dismissed. SD/- ## **ANU SIVARAMAN JUDGE** ACM / 26.7.2019 **WP(C).No.36512 OF 2018(L) 13** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 L COPY OF REPRESENTATION DATED 05.01.2013 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.** - **EXHIBIT P2 COPY OF PROPOSAL VIDE NO.B1/DPC/PROPOSAL/2013-R&M DATED 8.2.2013 BY THE SUPERINTENDING ENGINEER.** - **EXHIBIT P3 COPY OF THE JUDGMENT DATED 08.12.2016 IN W.P.(C). NO. 5268 OF 2013 OF THIS HON'BLE COURT.** - **EXHIBIT P4 COPY OF THE JUDGMENT DATED 03.04.2017 IN WRIT APPEAL NO.455 OF 2017 OF THIS HON'BLE COURT.** - **EXHIBIT P5 COPY OF THE ORDER NO.A6/PROMOTION/FOREMAN(MC)2018-M DATED 20.03.2018 ISSUED IN FAVOUR OF THE PETITIONER.** - **EXHIBIT P6 COPY OF THE INFORMATION VIDE NO.** - **A7/RTI/MB/2017-M DATED 09.11.2017 OBTAINED BY THE PETITIONER UNDER THE RIGHT TO INFORMATION ACT.** - **EXHIBIT P7 COPY OF THE REQUEST SUBMITTED BY THE PETITIONER BEFORE THE DEPUTY CHAIRMAN OF THE COCHIN PORT TRUST ON 11.05.2018.** **WP(C).No.36512 OF 2018(L) 14** ## **EXHIBIT P8** **COPY OF THE PROCEEDINGS OF THE COCHIN PORT TRUST VIDE NO. A4/DPC/MC/2018-M DATED 28.08.2013.** ## **RESPONDENT'S EXHIBITS** **EXHIBIT R1(A) TRUE COPY OF THE RELEVANT PAGE OF THE 'SWAMY'S COMPLETE MANUAL ON ESTABLISHMENT AND ADMINISTRATION FOR CENTRAL GOVERNMENT OFFICES''. EXHIBIT R1(B) TRUE COPY OF THE RECRUITMENT RULES FOR THE POST OF FOREMAN (MECHANICAL) DRY DOCK AS IT STOOD EARLIER EXHIBIT R1(C) TRUE COPY OF THE RECRUITMENT RULES FOR THE POST OF FOREMAN (MECHANICAL) DRY DOCK AS IT STANDS EARLIER**