Lalichan and another v. Kerala State Financial Enterprises Corporate Office, Thrissur, and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **FRIDAY, THE 20TH DAY OF JUNE 2014/30TH JYAISHTA, 1936** ## **WP(C).No. 18714 of 2011 (L)** **----------------------------** ## **PETITIONERS :** - **-------------------** **1. LALICHAN AND ANOTHER** - **AGED 43 YEARS, ASSISTANT MANAGER KERALA STATE FINANCIAL ENTERPRISES LTD. AMBALAPPUZHA BRANCH, ALAPPUZHA DISTRICT.** **2. JAMES JOBSON M.K., S/O.JOHNSON, AGED 52 YEARS, ASSISTANT MANAGER, HEAD OFFICE THRISSUR.** **BY ADV. SRI.JACOB SEBASTIAN** **RESPONDENT(S):** - **----------------------------** **1. THE KERALA STATE FINANCIAL ENTERPRISES CORPORATE OFFICE, BHADRATHA, THRISSUR REP.BY ITS, MANAGING DIRECTOR.** **2. THE MANAGING DIRECTOR, KERALA STATE FINANCIAL ENTERPRISES, CORPORATE OFFICE BHADRATHA, THRISSUR.** ## **3. RAJENDRAN.N.,** - **MANAGER GRADE-IV, KERALA STATE FINANCIAL, ENTERPRISES CORPORATE OFFICE, BHADRATHA, THRISSUR.** ## **4. SURAJ.P.S.,** - **MANAGER GRADE-IV, KERALA STATE FINANCIAL, ENTERPRISES CORPORATE OFFICE, BHADRATHA, THRISSUR.** ## **R1 & R2 BY ADVS. SRI.E.K.NANDAKUMAR** **SRI.K.JOHN MATHAI SRI.P.BENNY THOMAS SRI.P.GOPINATH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/3/2014, THE COURT ON 20-06-2014 DELIVERED THE FOLLOWING:** **BP** ## **WP(C).NO. 18714 OF 2011 (L)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS :** - **P1: COPY OF THE SELECT LIST DT 28/02/2011 PUBLISHED BY THE R1.** - **P2: COPY OF INFORMATIONS APPLIED IN THIS REGARD LEGAL FURNISHED BY THE R1 COMPANY UNDER THE RTI ACT ON 23/6/2011.** - **P3: COPY OF THE ORDER OF PROMOTION DT 18/5/2011 RELATING TO R3.** - **P4: COPY OF THE ORDER OF PROMOTION DT 18/5/2011 RELATING TO R4.** - **P5: COPY OF THE MEMO NO. 47247 DT 30/3/2009 OF THE R1** - **P6: COPY OF THE MEMO NO. 47102 DT 3/5/2010 OF THE R1.** ## **RESPONDENT'S EXHIBITS :** - **EXT.R1(A): COPY OF THE RELEVANT PAGES OF QUARTERLY REVIEW PUBLISHED BY GOVERNMENT SHOWING THE DEFICIENCY OF SC/ST CANDIDATES.** - **EXT.R1(B): COPY OF THE MARKLIST PREPARED BY THE KERALA PUBLIC SERVICE COMMISSION OBTAINED FROM THEIR WEBSITE.** - **EXT.R1(C): COPY OF G.O.(P) 20/2004/P& ARD DT 10/12/2004.** - **EXT.R1(D): COPY OF THE MEMO ISSUED TO THE 1ST PETITIONER DT 8/12/2009.** - **EXT.R1(E): COPY OF THE ORDER DT 3/8/2009 ISSUED BY R1 TO DHANALAKSHMI P.V. ASST. MANAGER, KODAKARA.** - **EXT.R1(F): COPY OF THE RANK LIST DT 28/2/2011.** **//TRUE COPY//** ## **P.A. TO JUDGE** **BP** ## **A.V.RAMAKRISHNA PILLAI, J.** = = = = = = = = = = = = = = = = = W.P(C) No.18714 of 2011 = = = = = = = = = = = = = = = = = = Dated this the 20[th] day of June, 2014 ## **JUDGMENT** Exts.P3 and P4 by which the 1[st] respondent had promoted respondents 3 and 4 as Manager Grade IV are under challenge in this writ petition. 2. The petitioners are Assistant Managers in the 1[st] respondent who figured as Sl. Nos.24 and 25 respectively in Ext.P1 select list for the post of Manager Grade IV. Allegedly, as on 1.4.2011, there were 524 posts of Managers in the company out of which only 483 managers are working and 41 posts are lying vacant to which appointments had to be made from Ext.P1. The petitioners allege that while they were waiting for promotion, overlooking their claim, the first respondent has appointed respondents 3 and 4 as Manager Grade IV, on 18.5.2011. 3. They would further allege that the third respondent by his representation dated 12.3.2009 and the 4[th] respondent by his representation dated 26.4.2010 had relinquished their WP(C).18714/11 **-:2:-** promotion to the said post which was accepted by the 1[st] respondent making it clear that they would be considered for promotion only after the expiry of the period mentioned therein. Therefore, it was contended that in view of Exts.P5 and P6, respondents 3 and 4 could not be considered for any vacancy that arose in the post of Manager Grade IV for the period they have relinquished their promotion. 4. It is further alleged that the orders of promotion of respondents 3 and 4 were only on 18.5.2011 whereas the petitioners have the right to be promoted with effect from 1.4.2011. According to them, if Exts.P3 and P4 are sustained, respondents 3 and 4 would steal a march over them in future promotions also, entailing in denial of promotions and other benefits to the petitioners. 5. Respondents 1 and 2 have filed a detailed counter affidavit as well as an additional counter affidavit. It was contended that insofar as 3[rd] respondent is concerned, he had relinquished promotion to the post of Manager Grade IV for a period of 5 years with effect from 28.2.2009 and the 4[th] WP(C).18714/11 **-:3:-** respondent had relinquished promotion for a period of one year with effect from 20.4.2010. It was further contended that the 3[rd] respondent had applied for withdrawal of his relinquishment on 17.5.2011 and this was accepted by the competent authority and order was issued on 18.5.2011. As far as 4[th] respondent is concerned, it was contended that his period of relinquishment expired on 20.4.2011. 6. According to them, the 1[st] respondent conducts the Competitive Promotion Test to the post of Manager Grade IV and promotions were made on the basis of interview and group discussion. Respondents 3 and 4 were included in the said ranked list. However, on account of the fact that they had relinquished their promotion, they were not promoted to the post of Manager Grade IV at the time when they became entitled to promotion; it was contended. It was admitted that the petitioners were included in the similar manner in the ranked list published on 28.2.2011 for promotion. However, as and when the 3[rd] respondent withdrew his relinquishment, he became entitled for promotion and consequently, he was WP(C).18714/11 ## **-:4:-** promoted vide Ext.P3. Insofar as the 4[th] respondent is concerned, by Ext.P4 order he was considered for promotion as the period of relinquishment was over; it was contended. 7. The contention of the petitioners that vacancies were available for promotion and still they were not promoted is denied. The allegations that there were 41 vacancies in the cadre of Manager Grade IV as on 1.4.2011 was also denied by the respondents. They have a further case that the petitioners were facing disciplinary proceedings and, therefore, they were not eligible for promotion till the finalisation of the disciplinary proceedings. According to them, there were no vacancies to which, the petitioner could be promoted at any point of time before 18.5.2011. 8. In the additional counter affidavit it is stated that as per Ext.R1(f) ranked list dated 28.2.2011, the first 18 rank holders were promoted based on the vacancies existed as on 28.2.2011. The next two vacancies in the due course arose only on 7.7.2011 and subsequent promotions from the ranked list were duly effected. Thereafter, 3 other vacancies which WP(C).18714/11 **-:5:-** arose were filled up on 3.9.2011. Only after the 23[rd] rank holder in the ranked list was promoted, the 1[st] petitioner who was 24[th] rank holder would be considered for promotion. However, since the 1[st] petitioner was undergoing disciplinary proceedings, he could not be considered for promotion till the completion of the said proceedings. They have stated that afterwards 3 more vacancies arose and promotions were made, including that of the 2[nd] petitioner, keeping the 1[st] petitioner aside. The disciplinary proceedings against the 1[st] petitioner was completed only on 28.10.2011 when he was imposed with censure. Accordingly, he was promoted to the very next vacancy, which arose on 8.12.2011. 9. Arguments have been heard. 10. The main argument advanced by the learned counsel for the petitioners is that in view of Exts.P5 and P6, respondents 3 and 4 would not have been considered for any vacancies that arose in the post of Manager Grade IV for the period they were relinquished their promotion. Exts.P3 and P4 orders by which respondents 3 and 4 were promoted are WP(C).18714/11 **-:6:-** dated 18.5.2011. The petitioners allege that they have a right to be promoted with effect from 1.4.2011. In support of the argument, the learned counsel for the petitioners draw support of the decision of this Court in **Varghese and others** v. **State of Kerala and others** (1981 KLT 458). It was submitted that the date of occurrence of the vacancy should be the relevant date for determining promotion and not the date when the order was passed. 11. In the instant case, vacancies were available on 1.4.2011 to which the petitioners could have been promoted; so submitted the learned counsel for the petitioners. However, it is the clear case of the 1[st] respondent that 3[rd] respondent had withdrawn the relinquishment for promotion on 17.5.2011. So far as the 4[th] respondent is concerned, his period of relinquishment expired on 20.4.2011. The decision of **Varghese and others** v. **State of Kerala** (cited supra) has no application to the present case as there were no vacancies available for promotion till 17.5.2011. WP(C).18714/11 **-:7:-** 12. It is specifically stated in the counter affidavit by the 1[st] respondent that it has been a practice in their company to consider candidates for promotion even if they have relinquished promotion for specific periods, if they withdraw their relinquishment before occasion arises for considering them for promotion. 13. It can be seen that as two vacancies were set to arise by the end of March, 2011, due to the retirement of serving managers on 30.3.2011, it was decided by the first respondent that the same could be filled up by promoting respondents 3 and 4 as they were seniors to the rank holders in the ranked list dated 28.2.2011. Therefore, there is no merit in the contention of the petitioners that they ought to have been considered for promotion to the vacancies to which respondents 3 and 4 were promoted. Their right for promotion, if any, would have arisen only after the promotion of their immediate seniors, as per the ranked list on 03.09.2009 and, therefore, there is no rhyme or reason to contend that they could have been promoted to the vacancies WP(C).18714/11 ## **-:8:-** which arose before that. 14. There is yet another reason also for denying the prayer as there are several another persons in between the petitioners and respondents 3 and 4 who are not impleaded in this writ petition. It is specifically averred by the 1[st] respondent that they are following the mandate of G.O(P) No.20/2004/P&ARD dated 10.12.2004 in the matter of relinquishment of promotion by its employees and the right of the employees concerned to withdraw the same. A copy of the Government Order is produced and marked as Ext.R1(c) along with the additional counter affidavit. 15. From a reading of Ext.R1(c) it is clear that the party respondents have a right to withdraw their relinquishment and in that event they have a right to be considered for promotion immediately after withdrawal of the relinquishment. The first respondent has only complied with the aforesaid direction. 16. A Division Bench of this Court in **State of Kerala** v. **Suseela George** [2000 (3) KLT 295] has observed that when WP(C).18714/11 ## **-:9:-** there is an offer for a provisional promotion and the Government servant declines to accept the post, it is difficult to lay sown that he will forfeit his rights for all time to come. Viewed in that profile, it is unsafe to hold that respondents 3 and 4 who had relinquished their right to be promoted for a temporary period cannot be considered for promotion in future. On a consideration of the entire materials now placed on record, this Court is of the definite view that there is no reason to interfere with the impugned orders. Therefore, the writ petition fails and accordingly, it is dismissed. Sd/- **A.V.RAMAKRISHNA PILLAI JUDGE** krj