K. Thankarajan v. Managing Director, Trivandrum Regional Co-operative Milk Producers' Union Ltd., Alleppey Unit (O.P. No. 4394 of 1989)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 26TH DAY OF JUNE 2014/5TH ASHADHA, 1936** ## **OP.No. 4394 of 1989 (W)** ## **------------------------** ## **PETITIONER:** - **-------------------** **K.THANKARAJAN, MILK PROCUREMENT OFFICER TRIVANDRUM REGIONAL CO-OPERATIVE MILK PRODUCER'S UNION LTD. ALLEPPEY UNIT, MANNAR.** ## **BY ADVS.SRI.P.SANKARANKUTTY NAIR SRI.T.V.AJAYAKUMAR** ## **RESPONDENTS:** **----------------------------** **1. MANAGING DIRECTOR, TRIVANDRUM REGIONAL CO-OPERATIVE MILK PRODUCERS' UNION LTD. GIRIJA BHAVAN, THYCAUD, TRIVANDRUM – 14.** **2. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES [DAIRY] TRIVANDRUM.** **3. SHRI.T.T.MATHEW, MILK PROCUREMENT OFFICER, TRIVANDRUM REGIONAL CO-OPERATIVE MILK PRODUCERS' UNION LTD. TRIVANDRUM UNIT, GIRIJA BHAVAN, THYCAUD, TRIVANDRUM – 14.** **BY ADV. SRI.B.S.KRISHNAN (SR.) R, BY ADV. SRI.K.B. SURESH R1 BY ADV. SRI.K.ANAND (A.201) R,R1 BY ADV. SMT.LATHA KRISHNAN** **GOVT.PLEADER, SRI.K.K.SAIDALAVI.** **THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 26-06-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **APPENDIX** ## **PETITIONER'S EXTS:** **EXT.P1: COPY OF THE CIRCULAR NO.TRU/PER/1/86 DT.11.4.1989 ISSUED BY THE 1ST RESPONDENT. EXT.P2: COPY OF THE CIRCULAR NO.PER/80/86 PUBLISHED ON 9.1.1987. EXT.P3: COPY OF RULES 26 AND 27 OF THE STAFF REGULATION OF THE FEDERATION. EXT.P4: COPY OF THE CIRCULAR NO.PER/63/84 DT.2.3.1985 AND RELEVANT PAGE OF THE SENIORITY LIST, ISSUED BY THE FEDERATION. EXT.P5: COPY OF THE CIRCULAR NO.PER/63/84 DATED 19.4.1984 AND THE RELEVANT PAGE OF THE PROVISIONAL LIST. EXT.P6: COPY OF THE BYELAWS OF THE TRIVANDRUM REGIONAL CO-OP. MILK PRODUCERS UNION LTD. EXT.P7: COPY OF APPLICATION FILED BY THE PETITIONER DT.19.4.1989. EXT.P8: COPY OF BIO-DATA SUBMITTED BY THE PETITIONER. EXT.P9: COPY OF LETTER NO.TRU/PER/1/86/545 DATED 29.4.1989 OF THE 1ST RESPONDENT. EXT.P10: COPY OF THE ORDER NO.TRU/PER/65/2000 DATED 10.5.2000. EXT.P11: COPY OF PAGES 1 TO 5 OF THE KERALA CO-OPERATIVE MILK MARKETING FEDERATION LTD.S BOOK “OPERATION FLOOD-II SUB PROJECT DETAILS, KERALA” EXT.P12: COPY OF PAGE 7 OF THE PUBLICATION MENTIONED IN SL.NO.2 ABOVE. EXT.P13: COPIES OF PAGES 1, 2 AND 5 OF THE “STATUS REPORT OF THE KERALA CO-OPERATIVE MILK MARKERTING FEDERATION LTD., TRIVANDRUM. EXT.P14: COPY OF PAGE 14 OF THE INDIAN DAIRY CORPORATION'S BOOK “OPERATION FLOOD II, DAIRY DEVELOPMENT PROJECT FOR KERALA. EXT.P15: COPY OF PAGE 16 OF THE SAID BOOK MENTIONED IN SL.NO.5 ABOVE.** - **EXT.P16: COPY OF PAGES 22 & 23 OF THE SAID BOOK MENTIONED IN SL.NO.5 ABOVE.** - **EXT.P17: COPY OF PAGES 5 & 6 OF PUBLICATION ENTITLED “MILK PROCUREMENT THROUGH PRODUCERS CO-OPERATIVE” PUBLISHED BY THE NATIONAL DAIRY DEVELOPMENT BOARD, ANAND.** - **EXT.P18: COPY OF THE ORDER NO.TRU: PER:5:94 DATED 30.12.1994 PASSED BY THE 1ST RESPONDENT.** - **EXT.P19: RELEVANT PORTION OF G.O.(MS) NO.80/97/AD THIRUVANANTHAPURAM DATED 3.3.1997 TOGETHER WITH THE APPENDIX** - **EXT.P20: COPY OF THE ORDER DATED 10.5.2000 NO.TRU/PER/5/2000 ISSUED BY THE 1ST RESPONDENT.** - **EXT.P21: COPY OF THE OBJECTION FILED BY THE PETITIONER DT.10.8.200.** - **EXT.P22: COPY OF THE ORDER IN R.P.NO.118/2002 AGAINST JUDGMENT IN O.P.NO.4394/1989 DT.7.12.2001.** - **EXT.P23: COPY OF THE ORDER DT.16.7.2001 ISSUED BY THE 1ST RESPONDENT.** ## **RESPONDENT'S EXTS:** - **EXT.R3(a): COPY OF THE APPROVED STAFF PATTERN OF EMPLOYEES IN THE MANAGER CADRE IN THE TRIVANDRUM REGIONAL CO-OPERATIVE MILK PRODUCERS' UNION LTD.** - **EXT.R3(b): COPY OF THE APPLICATION WITH BIO-DATA FOR SELECTION TO THE POST OF ASSISTANT MANAGER (INSTITUTIONAL DEVELOPMENT) SUBMITTED BY THE 3RD RESPONDENT DT.20.4.1989.** ## **//True copy//** **PA to Judge** ## **ALEXANDER THOMAS, J. --------------------------------O.P. No.4394 OF 1989 --------------------------------Dated this the 26[th] day of June, 2014** **J U D G M E N T ~~~~~~~~~~~** The petitioner and the third respondent joined the service of the 1[st] respondent as Milk Procurement Officer. But it is common ground that as both of them had entered the service on the same day, the petitioner being elder in age has been consistently treated as senior in service to the 3[rd] respondent, by virtue of the rules and norms governing the field. While so, a temporary post of Assistant Manager (Institutional Development) arose under the 1[st] respondent based on a development programme financed by the National Dairy Development Board, which is a Central Government Agency. The petitioner, the 3[rd] respondent and some other incumbents stake their claim for the said post and, finally, the 3[rd] respondent was appointed to the said temporary post of Assistant Manager (Institutional Development) as per Ext.P10 proceedings dated 22.5.1989. The terms and conditions stipulated in Ext.P10, particularly in paragraph 1 thereof are O.P.No.4394/1989 2 very relevant for the issues raised in this case and the same reads as follows: “The post of Assistant Manager (Institutional Development) is a temporary one but likely to continue for a period of four years. Your appointment against that post will be treated as temporary and does not confer any right or entitlement for claiming seniority in the category of Assistant Manager and your seniority in the category of Assistant Manager and your seniority in the cadre of Milk Procurement Officer will not change because of this change.” 2. Later, as per Ext.P18 proceedings dated 30.12.1994, several incumbents including the writ petitioner and the 3[rd] respondent were promoted as Assistant Manager (Procurement) and they were maintaining their earlier seniority, in view of the above said condition stipulated as per paragraph 1 of Ext.P18. So, indisputably, the petitioner remained senior to the 3[rd] respondent in the cadre of Assistant Manager. Later, by the impugned Ext.P20 proceedings dated 10.5.2000 issued by the 1[st] respondent, the scale of pay applicable to the 3[rd] respondent has been enhanced from Rs.8,000 – 14,250/- to Rs.10,000 – 16,350/with effect from 23.5.1997, while the petitioners scale of pay O.P.No.4394/1989 3 remain at Rs.8,000-14,250/-. It is challenging Exts.P10 and P20 and for certain other consequential reliefs that the Original Petition has been instituted. 3. Respondents 1 and 3 have filed their pleadings in the form of counter affidavit to resist the pleas of the petitioner. The stand of the respondents is that what is granted to the 3[rd] respondent is a grade promotion based on 8 years service as Assistant Manager. It is their contention that despite the condition imposed as per paragraph 1 of Ext.P10, the 3[rd] respondent has actually discharged duties and functions as Assistant Manager pursuant to Ext.P10 and therefore the period during which he worked as Assistant Manager pursuant to Ext.P10 has also been taken into account for granting him a higher grade which resulted in the benefit conferred as per Ext.P18 dated 30.12.1994. The pleadings in this case has been amended by the writ petitioner and the prayers also amended essentially for quashing Ext.P10 and for mandamus to grant the benefit of appointment as Assistat Manager to the petitioner to the post referred to in Ext.P10 and for certiorari to quash Ext.P20 and for mandamus to grant to the petitioner the higher O.P.No.4394/1989 4 grade in the pay scale of Rs.10,000-16,350 with effect from 23.5.1997 to the petitioner as given to the 3[rd] respondent and for certiorari to quash Ext.P20 to the extent it restricts the grant of the above said higher grade in the scale of Rs.10,000 - 16350 to the petitioner only with effect from 1.7.2001 and for mandamus to direct the 1[st] respondent to grant arrears of salary declaring that the petitioner was entitled to be promoted as Assistant Manager with effect from the date of Ext.P10 order and pay all consequential monetary benefits to the petitioner till 31.1.2008 (date of his retirement) and for mandamus to direct the 1[st] respondent the pay arrears of salary and allowances on the basis of the higher grade of Rs.10000 – 16350 with effect from 23.5.1997 and to re-fix and disburse such revised pensionary benefits accordingly with effect from 1.2.2008 etc. 4. Heard Sri.T.V. Ajayakumar, learned counsel for the petitioner, Sri.K.Anand, learned senior counsel for 1[st] respondent and the learned Government Pleader appearing for the 2[nd] respondent. None has appeared for the 3[rd] respondent. 5. Though the petitioner has challenged the temporary appointment given to the 3[rd] respondent as per the impugned O.P.No.4394/1989 5 Ext.P10 dated 22.5.1989, this Court is inclined to overrule the said contention of the petitioner and to accept the case of the 1[st] respondent in that regard regarding the said temporary appointment given to the 3[rd] respondent. The 1[st] respondent has filed a counter affidavit, wherein it is stated that the post of Assistant Manager (Institutional Development) referred to in Ext.P1 circular and the impugned Ext.P10 order is not one coming under the regular staff pattern approved for the Society and two other posts in another category were created temporarily for the implementation of the Co-operative Development Programme of the National Dairy Development Board and it is only as part of the fully subsidised programme that the said posts were created on a temporary measure initially for a period of four years. It is further asserted in the said counter affidavit of the 1[st] respondent that pursuant to Ext.P1 circular dated 11.4.1989, that the eligible candidates including the petitioner and the 3[rd] respondent were interviewed by a Personnel Committee and after evaluation by such experts, the said Committee, which conducted the selection, made the recommendation to grant the temporary appointment to the 3[rd] O.P.No.4394/1989 6 respondent and it was accordingly that the Board of Directors of the 1[st] respondent in their meeting held on 19.5.1989 ordered as per Ext.P10 dated 10.5.2000 to grant the temporary appointment of the 3[rd] respondent to the said post of Assistant Manager (Institutional Development). Though the petitioner has attempted to controvert the above said contentions of the 3[rd] respondent and to contend that the petitioner ought to have been granted the said appointment in the place of the 3[rd] respondent, this Court is not inclined to accept the said plea of the writ petitioner. Evidently, the candidates including the petitioner and the 3[rd] respondent were evaluated by the Personnel Committee through an interview and thereafter that the said Committee consisting of experts had decided to recommend the name of the 3[rd] respondent for the said temporary appointment. With the limitations well established in judicial review, it is not within the realm of this Court to make a comparative evaluation of the performance in the interview of the rival candidates so as to adjudge such issues. To do so, would amount to sitting in appeal over the considered decision taken by the personnel committee. Therefore, this Court is not O.P.No.4394/1989 7 inclined to grant the relief sought for by the petitioner to quash Ext.P10 and to grant him appointment in the place of the 3[rd] respondent with effect from the date of Ext.P10. 6. The main question to be determined in this case is as to whether the action of the 1[st] respondent in granting higher grade to the 3[rd] respondent as per Ext.P20 with effect from 23.5.1997 and restrict the said benefit to the petitioner only with effect from 1.7.2001 as per Ext.P22 is legal and correct. 7. Sri.T.V. Ajayakumar learned counsel for the petitioner placed heavy reliance on the ruling of the Apex Court in **Mohan Dutt Sharma v. Chief Justice, Punjab and Haryana High Court** reported in [AIR 1997 SC 3094] and on this basis he contended that the service rendered by the 3[rd] respondent with a specific condition as a temporary measure as the one ordered in Ext.P10 will not confer any right of seniority or right of higher grade to the 3[rd] respondent. For to hold otherwise in favour of the 3[rd] respondent would obliterate and scuttle the stipulations in paragraph 1 of Ext.P10 order. In the above said **Mohan Dutt** **Sharma's** case (supra), the employee concerned who was working as an Assistant was temporarily appointed as O.P.No.4394/1989 8 Superintendent Grade-II on ad hoc basis and the said appointment order contained the following specific conditions: “Against a newly created post w.e.f. 3.2.1982 (forenoon) by keeping in abeyance one post of Senior Assistant held by him subject to the condition that on his promotion he will not be deemed to have become senior to those officials who are otherwise senior to him in the general seniority and that he will have no preferential claim for promotion as Superintendent Gr.I merely on account of his present promotion.” 8. A Writ Petition was instituted by the said employee praying that the above said condition is liable to be deleted and for directions to grant him seniority, confirmation, selection grade etc. based on his appointment as Superintendent Grade II with effect from the date of the above referred temporary appointment order. The Supreme Court on detailed consideration of the matter held that the promotion of the petitioner therein was not in the normal course and that it was done because of special requirements of the employer and that the fact that the said employee was the only qualified person for the post was also considered by granting him promotion that by O.P.No.4394/1989 9 virtue of such promotion he would not be deemed to become senior to those officials who are otherwise senior to him in the general seniority and that those employees who have senior to the petitioner therein in the category of Assistants, would certainly be ranked above the petitioner therein, as and when such employees are promoted as Superintendent Grade II, although the petitioner/appellant therein was promoted as Superintendent Grade II prior to them by virtue of the above referred temporary arrangement. It was categorically held by the Apex Court that the conditions quoted to herein above would operate as long as the appellant therein remains in the promoted cadre lest the interse seniority between the appellant therein and other incumbent would be affected to the detriment of such seniors. 9. In the instant case as referred to hereinabove, the specific conditions are in categoric terms to the effect that the post of Manager (Institutional Development ) is a temporary one but will likely to continue for a period of 4 years but that the 3[rd] respondent's appointment against that post will be temporary and shall not confer any right or entitlement for claiming O.P.No.4394/1989 10 seniority in the category of Assistant Manager and that the 3[rd] respondent's seniority in the cadre of Milk Procurement Officer will not change because of this change. A comparison of the conditions considered by the Apex Court in **Mohan Dutt Sharma's** case (supra) with the conditions in para 1 of the impugned Ext.P10 would show that the same are almost similar and that the ratio decidendi laid down by the Apex Court in **Mohan Dutt Sharma's** is squarely applicable to the facts and circumstances of the case. 10. True that the service rendered by the 3[rd] respondent consequent to Ext.P10 order would surely entitle him for salary for the period during which he has discharged the duties and functions of that post. But it will not entitle him anything more than that and this Court has no doubt that the 3[rd] respondent cannot claim any seniority or any higher benefits like higher grade or consideration for higher promotion etc. based on the temporary appointment that is secured as per Ext.P10, in view of the aforementioned categoric conditions expressly laid down in paragraph 1 of Ext.P10. The 3[rd] respondent has never chosen to challenge the conditions stipulated in paragraph 1 of Ext.P10 O.P.No.4394/1989 11 and therefore, the 3[rd] respondent and the 1[st] respondent are fully bound by those conditions. Still further, though the petitioner, the 3[rd] respondent and some other incumbents were regularly promoted as per Ext.P18 dated 13.12.1994, it is clearly ordered in Ext.P18 that all the incumbents will be on probation pursuant to Ext.P18 and that the effect of promotion to the cadre of Assistant Manager will be from the date of joining the promoted post, which clearly shows that the regular promotion has taken place only on the basis of the issuance of Ext.P18 dated 30.12.1994. Further it is ordered in Ext.P18 that all promotees mentioned therein will be on probation in the promoted post of Assistant Manager etc. So, it is evidently clear that even in the probation in the cadre of Assistant Manager can commence only pursuant to Ext.P18. Therefore, even in the cadre of Assistant Manager, the petitioner was indisputably senior to the 3[rd] respondent, more so, in view of the conditions in Ext.P10. In view of the ratio decidendi laid down by the Apex Court in **Mohan Dutt Sharma's case** (supra) the grant of higher grade to the 3[rd] respondent as per the impugned Ext.P20 dated 10.5.2000 is certainly illegal and ultravires. To hold otherwise O.P.No.4394/1989 12 would be to perpetrate inequality on a senior compared to a junior. The impugned action is certainly vitiated by hostile discrimination on a senior hand, while conferring a favour on a junior incumbent. 11. However, while considering the issue of moulding of reliefs in this case, this Court is of the considered opinion that the subsequent developments that has happened during the long period of 25 years should be taken into account so as not to cause any undue hardship and difficulties to the respondents. It is informed from the Bar that both the writ petitioner and the 3[rd] respondent has retired from service quite some time ago, as both of them are now in their 60s. As a matter of fact, it is stated that the writ petitioner has retired from service on 31.1.2008. In terms of the well settled rulings enunciated by the Apex Court as well as that of several High Courts, actual arrears of pay need not be granted in a case like this, during the periods when the writ petitioner may not have actually worked in the post concerned. So, this Court is of the opinion that only notional benefits may be ordered to be granted to the writ petitioner in respect of the period of his service prior to retirement. In this O.P.No.4394/1989 13 view of the matter, it is not necessary or equitable to set aside Ext.P20 leading to the disturbance of the 3[rd] respondent, whereby it may lead to a situation of recovery of amount actually disbursed to the 3[rd] respondent during the period he may have actually worked in the post concerned. 12. Considering all these aspects, this Court is inclined to grant a declaration that the writ petitioner is entitled to be granted the benefit of the higher grade in the scale of pay of Rs.10000 – 16350 notionally with effect from 23.5.1997, viz., the date of grant of such benefit to the 3[rd] respondent as per the impugned Ext.P20. It is, accordingly, ordered that the 3[rd] respondent shall fix the pay of the petitioner in the higher grade in the scale of pay of Rs.10,000-16,350 notionally with effect from 23.5.1997. It is further ordered and make clear that no actual arrears of pay need be granted to the petitioner. However, it is specifically ordered and directed that the 1[st] respondent shall compute and revise the terminal benefits already fixed and granted to the petitioner by re-fixing his last pay as on 31.1.2008 based on the above said notional pay so arrived at as directed above and the actual arrears of terminal O.P.No.4394/1989 14 benefits by such revision of terminal benefits should be sanctioned and actually disbursed to the petitioner. The entire exercise in this regard should be completed by the 1[st] respondent without any further delay, at any rate, within an outer time limit of three months from the date of production of a certified copy of this judgment by the petitioner. Writ Petition, accordingly, stands finally disposed of, subject to the above said observations and directions. **sd/ALEXANDER THOMAS, JUDGE.** ps/01/7/2014 //True copy// PA to Judge