Manikkan K. v. The State of Kerala and Malabar Cements Limited (W.P.(C) No.14030 of 2019)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **THURSDAY, THE 20TH DAY OF AUGUST 2020 / 29TH SRAVANA, 1942** ## **WP(C).No.14030 OF 2019(C)** ## **PETITIONER:** **MANIKKAN K., AGED 50 YEARS RAILWAY LIASON OFFICER, MALABAR CEMENTS LIMITED, WALAYAR, PALAKKAD, RESIDING AT BRINDAVAN, MUTTIKULANGARA (POST), MOB 8547287536** **BY ADV. SRI.U.BALAGANGADHARAN** ## **RESPONDENTS:** - **1 THE STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY, INDUSTRIES (H) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001** - **2 MALABAR CEMENTS LIMITED,REPRESENTED BY ITS MANAGING DIRECTOR, WALAYAR, PALAKKAD-678 624** **3 THE MANAGING DIRECTOR, MALABAR CEMENTS LIMITED, WALAYAR, PALAKKAD-678 624** **R1 BY GOVERNMENT PLEADER SMT.G RANJITHA R2-3 BY SMT.LATHA ANAND, SC, MALABAR CEMENTS LIMITED** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11-08-2020, THE COURT ON 20-08-2020 DELIVERED THE FOLLOWING:** ## W.P.(C) No.14030 OF 2019 -2- ## **“CR”** ## **JUDGMENT** Exhibit P5 Circular No.23514/BPE/87/PLG dated 5.7.1988, issued by the Chief Secretary, Planning and Economic Affairs, BPE Department, says that the Chief Executives of all Public Sector Undertakings are to review and amend the relevant special Rules/executive orders of their respective undertaking in which “experience” has been prescribed as one of the qualifications for recruitment to any post, to the effect that such “experience” qualification will not be applicable in the case of Scheduled Caste/Scheduled Tribe candidates. It further says that scheme should be drawn up by each public sector undertaking to give appropriate training, wherever necessary, to such candidates consistent with the requirements of efficiency and the needs of the job after recruitment. The question posed in this writ petition is whether a person belonging to a Scheduled Caste, who responded to the selection process to the post of Railway Liaison Officer (RLO) which is stated to be in M6 grade in the ## W.P.(C) No.14030 OF 2019 -3- notification calling for application, can, on being selected to be appointed to the post, be placed in the lower grade M7, solely on the ground that the candidate did not have the “experience” qualification. The answer is an emphatic “NO”. The facts and reasons follow. 2. Heard Sri U.Balagangadharan on behalf of the petitioner, Smt.G.Ranjita, Government Pleader for the 1[st] respondent and Smt.Latha Anand, Standing Counsel for the respondents 2 and 3. 3. The petitioner was initially recruited to the post of Clerk (Junior Assistant) Grade II in Sales Department of the 2[nd] Respondent (hereinafter referred to as the company). He was promoted as Junior Assistant Grade III on 21.6.1999, as Assistant Grade IV on 21.6.2004 and as Senior Assistant thereafter in the Sales Department. He also claims that he has served in the Personnel and Administration Department from 10.3.1995 to 31.8.2002. There is no want of academic ## W.P.(C) No.14030 OF 2019 -4- qualification, since the petitioner possesses B.Sc. degree, Higher Diploma in Co-operation, MA, MBA and MPhil. 4. On 8.12.2011, the company issued Exhibit P2 notice inviting application from eligible internal candidates for filling up the post of RLO in Grade M6. The qualification prescribed was Postgraduate Degree in Arts/Science/Commerce/Management and **“relevant” experience in railway liaison** . The petitioner submitted Exhibit P3 application on 16.12.2011. In Ext.P3, the petitioner has clearly spelt out the experience he has in railway liaison work. It can be seen from the minutes of the selection proceedings produced as Exhibit R2(a), that the selection committee ranked the petitioner as Rank 1 and one K.Muhammed Musthafa as Rank 2. The committee further made an observation that it is their considered opinion that the post of RLO need be operated in Grade M7, **instead of the actual grade M6** as the ranked candidates are not having sufficient **“experience”** in railway liaison works. On the basis of the recommendation of the selection committee, the petitioner was appointed to the post as per Exhibit P4 order dated 15.5.2012. ## W.P.(C) No.14030 OF 2019 -5- The appointment letter shows that the post is in Grade M7. Immediately after appointment, the Malabar Cements Employees Association, through their General Secretary, submitted Exhibit P7 representation on 29.5.2012, before the company, stating that the petitioner has been given a lower grade, apparently for the reason that he belongs to a scheduled caste community and complaining that such discrimination is against social justice. 5. On 14.2.2013, the Principal Secretary of the BPE Department issued Exhibit P6 letter to all the public sector undertakings, directing them to comply with the requirements contained in Ext. P5 circular. It can be seen from the letter that **none** of the public sector undertakings had complied with the requirements in Ext. P5 circular, even after the passage of 25 years after the issuance of the circular. Less said the better about the manner in which the rights of members of the scheduled castes and tribes are tinkered with. On 20.12.2013, the petitioner sent Ext.P8 representation to the Managing Director of the company, pointing out the fact that he was ## W.P.(C) No.14030 OF 2019 -6- entitled to be placed in M6 grade at the time of his appointment as RLO and seeking his interference in the matter. 6. While so, the Government issued a staff pattern of the company on 8.5.2015, which is produced as Exhibit R2(c). The post of RLO has been shown as a post to carry a pay scale of Rs.12,050 – 19,800, which relates to a post in M7 Grade. Subsequently, the 1[st] respondent issued Ext.P1 Government order on 12.1.2016, sanctioning the pay revision of managerial employees in the company, which shows that the post of RLO is in the scale of Rs.12930 – 20250 and the corresponding revised scale is Rs.22360 – 37940, treating the post of RLO as one coming under M6 Grade. It can be seen from the list of posts mentioned in Ext.P1, that Serial No.40 to 56 in the said list are coming under the pay scales applicable to M6 Grade. On 16.1.2016, the company wrote Exhibit R2(d) letter to the 1[st] respondent, pointing out certain discrepancies in the staff pattern and the fixation sanctioned for the posts. One of the discrepancies pointed out was regarding the post of RLO. It was pointed out that the scale of pay is different and the grade is also ## W.P.(C) No.14030 OF 2019 -7- different. In fact, the company requested to fix the pay of RLO in M7 Grade instead of M6 in tune with the staff pattern introduced as per Ext.R2(c). 7. Even after Ext.P1, the company did not give the benefit of the pay in M6 grade to the petitioner. The petitioner continued to make representations, but to no avail. Finally, on the basis of a direction issued by the Government, on an appeal submitted by the petitioner, the question of reduction of grade was considered by the Board of Directors of the company at their meeting held on 31.8.2017. The company resolved to restore the grade M6 in the post of RLO to the petitioner retrospectively, as per the original notification as well as the existing profile of the managerial employees. The copy of the resolution has been produced as Exhibit P10. It can be seen from the agenda to the meeting, produced as Exhibit P9, that the petitioner was performing the duties and responsibilities of RLO for a period of 3 months even before he was appointed to the post. On 15.3.2018, the Principal Secretary to Government has written to the company, referring to several communications on the issue, and ## W.P.(C) No.14030 OF 2019 -8- requesting the company to grant service benefits to the petitioner “as per Rules in force and also based on merits”. The direction is as ambiguous as it can be. 8. On 30.8.2018, the company wrote a DO letter to the 1[st] Respondent narrating the entire fact situation. It can be seen from Exhibit P12 that the post of RLO was made a post on M6 grade with effect from 26.5.2007, that Sri.C.Chandran had been appointed in the said post on the basis of a notification dated 26.9.2009 and that Exhibit P2 notification was issued for filling up the retirement vacancy of the said C.Chandran. It is stated that on the basis of a letter dated 4.7.2017 from the Government, the Board of Directors on 31.8.2017, decided to restore the post to M6 grade and allow the benefits to the petitioner. The letter specifically says that Sri C.Chandran who was holding the post on M6 grade had only a postgraduate degree while the petitioner who belongs to a scheduled caste Community is much more academically qualified, and that denying M6 grade to the petitioner is against natural justice and the existing norms. Curiously, on 30.4.2019, the 1[st] respondent ## W.P.(C) No.14030 OF 2019 -9- wrote Exhibit P13 letter to the company, saying that the post of RLO can be retained in M6 grade from “then on”, and that it will not have retrospective effect. 9. Admittedly, the post of RLO was in the M6 Grade while the predecessor of the petitioner was in office. At the time of issuance of Ext.P2, the post was in M6 Grade. However, while appointing the petitioner as per Ext.P4, the company chose to shift the post to M7 grade. The only reason stated is the recommendation of the Selection Committee that the candidate does not possess experience in Railway Liaison. The above statement of the Selection Committee has to be appreciated with reference to Ext.P3 application submitted by the petitioner, narrating his experience in railway liaison, the admission in Ext.P12 DO letter by the company that the petitioner had experience of 3 months in railway liaison, and the fact that the claim made by the petitioner in his application and in the writ petition has not been specifically denied. An attempt is made in the counter affidavit filed on behalf of the 2[nd] and 3[rd] respondents to say that no responsibilities/authority were assigned to the ## W.P.(C) No.14030 OF 2019 -10- petitioner as Liaison Officer. But,it is to be noted that the qualification prescribed is “relevant experience in railway liaison” and not experience gained by functioning as a Liaison Officer or as a person put in charge thereof. 10. In the decision in **V. Lavanya v. State of T.N** _**.**_ **, reported in (2017) 1 SCC 322,** the Hon'ble Supreme Court in paragraphs 21 to 24 held as follows: “21. Article 14 of the Constitution enshrines the principle of equality before law. Article 15 prohibits discrimination against citizens on grounds only of religion, race, caste, sex, place of birth or any of them. As per Article 16, there shall be equality of opportunity for all citizens in matters relating to employment, or appointment to any office under the State. However, at the same time, the Framers of the Constitution were conscious of the backwardness of large sections of the population. It was also apparent that because of their backwardness, these sections of the population would not be in a position to compete with advanced section of the community. Article 16(4) of the Constitution enables the State to make provision for reservation of appointments or posts in favour of any backward class of citizens which, in its opinion, is not, adequately ## W.P.(C) No.14030 OF 2019 -11- represented in the services under the State. Article 16(4) has to be read with Article 335 which deals with claims of the Scheduled Castes and the Scheduled Tribes to services and posts and lays down that: ## “ **335. Claims of Scheduled Castes and Scheduled Tribes to services and posts** .— The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State.” **22.** The Constitution of India has made adequate enabling provisions empowering the State to promote reservation/concessions: special provisions are made for advancement of the socially and economically backward classes. These provisions will bring out the contents of equality of opportunity guaranteed under Articles 14, 15(1) and 16(1) of the Constitution of India by creating equal level-playing field. In _M. Nagaraj_ v. _Union of India_ [ _M. Nagaraj_ v. _Union of India_ , (2006) 8 SCC 212 : (2007) 1 SCC (L&S) 1013] , the Constitution Bench of this Court held as follows: (SCC p. 249, para 47) “ _47_ . Equality of opportunity has two different and distinct concepts. There is a conceptual distinction between a non-discrimination ## W.P.(C) No.14030 OF 2019 -12- principle and affirmative action under which the State is obliged to provide a level-playing field to the oppressed classes. Affirmative action in the above sense seeks to move beyond the concept of non-discrimination towards equalising results with respect to various groups. Both the conceptions constitute “equality of opportunity”.” **23.** Preferential treatment or concessions granted to SC/ST, Backward Classes, Physically Handicapped and Denotified Communities is within the concept of equality. Grant of relaxation is for the upliftment of the Scheduled Castes and Scheduled Tribes and other backward communities and the same has been eloquently stated in _State of M.P._ v. _Nivedita Jain_ [ _State of M.P._ v. _Nivedita Jain_ , (1981) 4 SCC 296] as under: (SCC pp. 314-15, para 26) “ _26_ . It cannot be disputed that the State must do everything possible for the upliftment of the Scheduled Castes and Scheduled Tribes and other backward communities and the State is entitled to make reservations for them in the matter of admission to medical and other technical institutions. In the absence of any law to the contrary, it must also be open to the Government to impose such conditions as ## W.P.(C) No.14030 OF 2019 -13- would make the reservation effective and would benefit the candidates belonging to these categories for whose benefit and welfare the reservations have been made. In any particular situation, taking into consideration the realities and circumstances prevailing in the State it will be open to the State to vary and modify the conditions regarding selection for admission, if such modification or variation becomes necessary for achieving the purpose for which reservation has been made and if there be no law to the contrary. Note ( _ii_ ) of Rule 20 of the Rules for admission framed by the State Government specifically empowers the Government to grant such relaxation in the minimum qualifying marks to the extent considered necessary. … The relaxation made by the State Government in the rule regarding selection of candidates belonging to Scheduled Castes and Scheduled Tribes for admission into Medical Colleges cannot be said to be unreasonable and the said relaxation constitutes no violation of Articles 15(1) and (2) of the Constitution. The said relaxation also does not offend Article 14 of the Constitution. It has to be noticed that ## W.P.(C) No.14030 OF 2019 -14- there is no relaxation of the condition regarding eligibility for admission into Medical Colleges. The relaxation is only in the rule regarding selection of candidates belonging to Scheduled Castes and Scheduled Tribes categories who were otherwise qualified and eligible to seek admission into Medical Colleges only in relation to seats reserved for them.” **24.** The idea behind laying down the NCTE Guidelines for conducting TET was to bring about uniformity and certainty in the standards and quality of education being imparted to the students across the nation. However, at the same time the framers of the Guidelines took note of the huge socio-economic disparity existing in the nation and accordingly, by virtue of Clause 9 enabled the respective State Governments/authorities to provide relaxation to the candidates belonging to socially backward classes. As discussed earlier, such a provision is in line with the principles enshrined in the Constitution. The State Government cannot be faulted for discharging its constitutional obligation of upliftment of socially and economically backward communities by providing 5% relaxation to the candidates belonging to Scheduled Castes, Scheduled Tribes, Backward Classes, Backward ## W.P.(C) No.14030 OF 2019 -15- Classes (Muslim), Most Backward Classes, Denotified Communities and Persons with Disability (PWD).” 11. It flows from the above paragraphs extracted from the judgment, that an action by the State in providing relaxation of the qualification of “experience” to the members belonging to the Scheduled Caste communities, while recruiting, can only be seen as the State discharging its constitutional obligation. By issuing Ext.P5, the 1[st] respondent has discharged its constitutional obligation. The 1[st] respondent who is the author of Ext.P5 Circular and Ext.P6 letter seeking compliance of Ext.P5, cannot be permitted to take a stand that experience should be insisted upon, which alone can be the reason for Ext.13 letter. The 2[nd] respondent which is a fully Government owned company cannot take a contention against Ext.P5. As such, even if the petitioner is to be treated as a person without experience in railway liaison, as is required under Ext.P2, having selected him as the best candidate available to hold the post of RLO, from among the applicants, there is no justification for placing him in the grade of ## W.P.(C) No.14030 OF 2019 -16- M7 instead of M6. No other reason is forthcoming for placing him in grade M7, other than the requirement of “experience”. 12. The contention of the respondents that reliance cannot be placed on Ext.P1 to say that the petitioner is entitled to be in M6 grade for the reason that Ext.P1 has been issued without noticing Ext.R2(c) whereby the Staff Pattern with RLO in M7 grade has been approved by the 1[st] respondent, cannot be countenanced. Ext.R2(c) whereby the post of RLO has been brought into M7 grade was issued only on 8.5.2015. The petitioner was appointed to the post much before that on 15.2.2012, at a time when the post was in M6 grade. The subsequent change in the grade cannot in any way affect the rights of the petitioner to be granted the pay scale that was in existence at the time of his appointment, which admittedly is in M6 grade. It is heartening to note that the management had realised the injustice meted out to the petitioner and sought to correct itself by passing Ext.P10 resolution. It is however disheartening to note that even after being properly apprised of the entire fact situation, the 1[st] respondent chose to issue ## W.P.(C) No.14030 OF 2019 -17- Ext.P13 letter, confining the relief of M6 grade from the date of Ext.P13 letter, which is more than 7 years after the injustice was meted out. 13. The counsel for the 2[nd] respondent placed before me the judgment of this Court in **P.S.V.Menon v. Malabar Cements Ltd. and others** reported in **[1997(2) KLT 825]** , to state that the company is bound by the directives issued by the 1[st] respondent and hence they have to comply with Ext.P13 letter. Ext.P13 letter runs counter to the directions contained in Ext.P2 Circular and Ext.P6 directions which were also issued by the 1[st] respondent. If the judgment in **P.S.V.Menon (Supra)** is to be followed, necessarily, the 2[nd] respondent has to follow Exts.P2 and P6 also. Going by Exts.P2 and P6, there is no legal justification for either the suggestion of the Selection Committee “to operate the post of RLO in grade M7 instead of the actual grade M6” or the action of the respondents 2 and 3 in accepting the suggestion and issuing Ext.P4 in the manner in which it is issued. ## W.P.(C) No.14030 OF 2019 -18- 14. The writ petition is allowed. Ext.P4 to the extent it seeks to place the petitioner in M7 grade instead of M6 grade is quashed. Ext.P13 which has been issued without any basis and suffers from arbitrariness, shall not in any way affect the decision of the 2[nd] respondent as seen from Ext.P10 resolution, to grant the benefit of M6 grade to the petitioner from the date of his appointment to the post of RLO. It is declared that the petitioner is entitled to the pay and allowances applicable to the post of RLO, treating it as a post borne in M6 grade. Consequentially, the respondents shall disburse the arrears of pay and allowances and all attendant benefits to the petitioner within 4 months from the date of receipt of a copy of this judgment. In the circumstances of the case, there will be no order as to costs. **Sd/-** **T.R. RAVI JUDGE** dsn ## W.P.(C) No.14030 OF 2019 -19- ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** |**EXHIBIT P1**|**A TRUE COPY OF GOVT. ORDER G.O (MS) NO.**| |---|---| ||**7/2016/ID DATED 21.1.2016.**| |**EXHIBIT P2**|**A TRUE COPY OF NOTIFICATION NO. PA**| ||**1/PER/11A/0100/2011 DATED 8.12.2011 ISSUED BY**| ||**THE 3RD RESPONDENT.**| |**EXHIBIT P3**|**A TRUE COPY OF THE APPLICATION DATED 16.12.2011**| ||**SUBMITTED BY THE PETITIONER.**| |**EXHIBIT P4**|**A TRUE COPY OF THE APPOINTMENT ORDER DATED**| ||**15.5.2012 ISSUED BY THE 3RD RESPONDENT.**| |**EXHIBIT P5**|**TRUE COPY OF GOVT. CIRCULAR NO. 23514/B.P.**| ||**E/87/PLG DATED 5.7.1988.**| |**EXHIBIT P6**|**A TRUE COPY OF THE COMMUNICATION NO. 1431/B.P.**| ||**E3/13/PLANNING DATED 14.2.2013.**| |**EXHIBIT P7**|**TRUE COPY OF REPRESENTATION SUBMITTED BY THE**| ||**ASSOCIATION DATED 29.5.2012 TO THE 3RD**| ||**RESPONDENT.**| |**EXHIBIT P8**|**TRUE COPY OF THE REPRESENTATION OF THE**| ||**PETITIONER DATED 20.12.2013 TO THE 3RD**| ||**RESPONDENT.**| |**EXHIBIT P9**|**A TRUE COPY OF THE NOTE DATED 31.8.2017**| ||**OBTAINED UNDER RTI ACT.**| |**EXHIBIT P10 **|**A TRUE COPY OF THE EXTRACT OF RESOLUTION NO.**| ||**2996 DATED 31.8.2017.**| ## W.P.(C) No.14030 OF 2019 -20- **EXHIBIT P11 A TRUE COPY OF THE LETTER DATED 15.3.2018 OF THE FIRST RESPONDENT OBTAINED UNDER RTI ACT.** **EXHIBIT P12 A TRUE COPY OF THE DO LETTER NO. M. D.O/334/2018/DATED 30.8.2018.** **EXHIBIT P13 A TRUE COPY OF THE LETTER OF THE FIRST RESPONDENT TO THE THIRD RESPONDENT DATED 30.4.2019.** ## **RESPONDENT'S EXHIBITS:** - **EXHIBIT-R2(A) TRUE COPY OF THE MINUTES OF THE PROCEEDINGS FOR THE SELECTION TO THE POST OF RAILWAY LIAISON OFFICER HELD ON 01/03/2012** - **EXHIBIT-R2(B) TRUE COPY OF THE RESOLUTION PASSED IN THE 214TH MEETING OF THE BOARD OF DIRECTORS OF THE MALABAR CEMENTS LIMITED** - **EXHIBIT-R2(C) TRUE COPY OF THE G.O(MS) NO. 57/2015/ID DATED 08/05/2015** - **EXHIBIT-R2(D) TRUE COPY OF THE LETTER DATED 16/01/2016 ISSUED BY THE 2ND RESPONDENT** - **EXHIBIT R1(a) TRUE COPY OF THE MINUTES OF THE DEPARTMENTAL PROMOTION COMMITTEE.**