P. C. Simon v Union of India and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **WEDNESDAY, THE 21ST DAY OF DECEMBER 2016/30TH AGRAHAYANA, 1938** ## **WP(C).No. 29252 of 2014 (F)** ## **-----------------------------------------** - **PETITIONER(S) : -------------------------** **P.C.SIMON, DEPUTY RUBBER PRODUCTION COMMISSIONER, RUBBER BOARD, REGIONAL OFFICE, THALIPARAMBA 670 148.** **BY ADVS. SRI.T.V.AJAYAKUMAR KUM.P.H.RIMJU** **RESPONDENT(S) :** **----------------------------** **1. UNION OF INDIA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, MINISTRY OF COMMERCE AND INDUSTRY, NEW DELHI 110 001.** **2. RUBBER BOARD, HEAD OFFICE, P.B NO.1122, SUB JAIL ROAD, KOTTAYAM 686 002, REPRESENTED BY ITS SECRETARY.** **3. DEPUTY SECRETARY (P&A), RUBBER BOARD, HEAD OFFICE, P.B NO.1122, SUB JAIL ROAD, KOTTAYAM- 686 002.** **4. THE DEPARTMENTAL PROMOTION COMMITTEE (FOR DEPUTY RUBBER PRODUCTION COMMISSIONER), RUBBER BOARD KOTTAYAM, REPRESENTED BY ITS CONVENOR AND CHAIRMAN, RUBBER BOARD, KOTTAYAM 686 002.** **5. ABDUL SALAM, MANAGING DIRECTOR, KANHANGAD RUBBERS LTD., 1ST FLOOR, BESTO CENTRE, KANHANGAD- 671 315, KASARAGOD DISTRICT.** **6. M.RAJU, DEPUTY RUBBER PRODUCTION COMMISSIONER, RUBBER BOARD REGIONAL OFFICE, COLLEGE ROAD, NEAR HEAD POST OFFICE, PATHANAMTHITTA 689 645.** **..2/-** **..2..** **WP(C).No. 29252 of 2014 (F)** **-----------------------------------------** **7. P.R.VIJAYAKUMARI DEPUTY RUBBER PRODUCTION COMMISSIONER, ROBBER PRODUCTION INSTITUTE, KOTTAYAM 686 008.** **R1 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL R2 TO R6 BY SRI. JOSEPH KODIANTHARA (SENIOR ADVOCATE) ADVS. SRI.BINU MATHEW SRI.TOM THOMAS (KAKKUZHIYIL) SRI.V.ABRAHAM MARKOS SRI.ABRAHAM JOSEPH MARKOS SRI.ISAAC THOMAS SRI.NOBY THOMAS CYRIAC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18-11-2016, ALONG WITH W.P(C).NO. 34161 OF 2014 AND W.P(C).NO. 34596 OF 2014, THE COURT ON 21-12-2016 DELIVERED THE FOLLOWING:** Msd. ## **WP(C).No. 29252 of 2014 (F)** ## **------------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS :** - **P1: TRUE COPY OF RELEVANT PORTION OF THE OFFICE MEMORANDUM DATED 15/05/2001 ISSUED BY THE 2ND RESPONDENT.** - **P2: TRUE COPY OF THE GRADATION LIST OF DEVELOPMENT OFFICERS AS ON 31/12/2006.** - **P3: TRUE COPY OF THE OM.F.NO.35034/97. ESTT (D) DATED 08/02/2002 ISSUED BY THE 1ST RESPONDENT.** - **P3(A): TRUE COPY OF THE OM DATED 35035/97. ESTT(D) DATED 16/02/2005 ISSUED BY THE 1ST RESPONDENT.** - **P3(B): TRUE COPY OF THE RELEVANT EXTRACT OF THE OMS DATED 06/01/2006 AND 19/05/2009.** - **P4: TRUE COPY OF RELEVANT PORTION THE RUBBER BOARD (SERVICE) RECRUITMENT RULES, 1961.** - **P5: TRUE COPY OF THE MEMORANDUM DATED 05/10/2009 ISSUED BY THE 3RD RESPONDENT.** - **P6: TRUE COPY OF THE PROCEEDINGS OF THE SELECTION COMMITTEE OF THE 2ND RESPONDENT DATED 20/10/2009.** - **P7: TRUE COPY OF THE OFFICE CIRCULAR DATED 06/03/2009 ISSUED BY THE 3RD RESPONDENT.** - **P8: TRUE COPY OF THE RELEVANT PORTION OF THE MEMORANDUM DATED 31/03/2010 ISSUED BY THE 3RD RESPONDENT.** - **P9: TRUE COPY OF THE OFFICE MEMORANDUM DATED 20/07/2010 ISSUED BY THE 3RD RESPONDENT.** - **P10: TRUE COPY OF THE OFFICE MEMORANDUM DATED 04/11/2010 ISSUED BY THE 3RD RESPONDENT.** - **P11: TRUE COPY OF THE OFFICE MEMORANDUM DATED 29/07/2011 ISSUED BY THE 3RD RESPONDENT.** - **P12: TRUE COPY OF THE PROCEEDINGS OF THE SELECT LIST DATED 31/08/2011 ISSUED BY THE 2ND RESPONDENT.** - **P13: TRUE COPY OF THE OFFICE MEMORANDUM DATED 01/11/2011 ISSUED BY THE 3RD RESPONDENT.** - **P14: TRUE COPY OF THE RECRUITMENT RULES FOR THE POST OF DEPUTY RUBBER PRODUCTION COMMISSIONER.** ## **WP(C).No. 29252 of 2014 (F)** ## **------------------------------------------** ## **P14(A): TRUE COPY OF THE RECRUITMENT RULES FOR THE POST OF DEVELOPMENT OFFICER.** - **P15: TRUE COPY OF THE INTERIM ORDER DATED 12/03/2013 PASSED BY THIS HON'BLE COURT IN W.P(C).NO. 6841/2013.** - **P16: TRUE COPY OF THE LETTER DATED 02/07/2010 OF THE 2ND RESPONDENT.** - **P17: TRUE COPY OF THE RELEVANT EXTRACT OF THE RUBBER BOARD RECRUITMENT RULES, 2009.** - **P18: TRUE COPY OF THE REPLY DATED 08/08/2013 GIVEN BY THE 3RD RESPONDENT.** - **P18(A): TRUE COPY OF ENGLISH TRANSLATION OF EXHIBIT P18.** - **P19: TRUE COPY OF THE REPLY DATED 17/05/2013 GIVEN BY THE 3RD RESPONDENT.** - **P20: TRUE COPY OF THE REPLY DATED 13/08/2013 GIVEN BY THE 3RD RESPONDENT.** **P20(A): TRUE COPY OF ENGLISH TRANSLATION OF EXHIBIT P20.** - **P21: TRUE COPY OF THE PROCEEDINGS DATED 16/04/2013 OF THE DPC.** - **P22: TRUE COPY OF THE ORDER DATED 01/03/2013 OF THIS HON'BLE COURT IN W.P(C).NO. 5771/13.** - **P23: TRUE COPY OF THE JUDGMENT DATED 04/07/2013 OF THIS HON'BLE COURT IN W.A NO.885/13.** - **P24: TRUE COPY OF THE JUDGMENT DATED 05/06/2013 OF THIS HON'BLE COURT IN W.A NO.618/13.** - **P25: TRUE COPY OF THE ORDER DATED 15/01/2014 OF THIS HON'BLE COURT IN I.A NO.11461/13.** - **P26: TRUE COPY OF THE RELEVANT PAGES OF THE ORDER DATED 07/08/2014 ISSUED BY THE 2ND RESPONDENT.** - **P27: TRUE COPY OF THE ORDER DATED 18/09/2014 OF THIS HON'BLE COURT IN CONTEMPT CASE (C) NO.743/2014.** - **P28: TRUE COPY OF THE REPRESENTATION DATED 12/09/2013 OF THE PETITIONER TO THE 2ND RESPONDENT** - **P29: TRUE COPY OF THE MEMORANDUM DATED 16/04/2014 ISSUED BY THE 3RD RESPONDENT.** ## **WP(C).No. 29252 of 2014 (F)** ## **------------------------------------------** - **P30: TRUE COPY OF THE OFFICE CARD PREPARED BY THE 2ND RESPONDENT.** - **P31: TRUE COPY OF THE REPLY DATED 25/09/2013 OF THE CENTRAL PUBLIC INFORMATION OFFICER OF THE 2ND RESPONDENT TO THE PETITIONER.** - **P32: TRUE COPY OF THE OFFICE MEMORANDUM DATED 13/05/2013 ISSUED BY THE 3RD RESPONDENT.** ## **RESPONDENT(S)' EXHIBITS :** ## **NIL** ## **//TRUE COPY//** **P.A.TO JUDGE.** Msd. ## **ANU SIVARAMAN, J.** **= = = = = = = = = = = = = = = = = = = = = = = =** - **W.P.(C).Nos.29252, 34161 & 34596 of 2014** - **= = = = = = = = = = = = = = = = = = = = = = = = Dated this the 21[st] day of December, 2016** ## **JUDGMENT** - 1.The petitioners are the employees of the Rubber Board. These writ petitions are filed challenging the proceedings of the 2[nd] respondent Rubber Board dated 12.05.2006, superseding the petitioners for promotion and seeking retrospective promotion from the date on which their immediate juniors in service was promoted with all consequential service benefits. - 2.The case of the petitioners is that as per the Office Memorandum dated 08.02.2002 issued by the Government of India, in the case of selection (merit promotion), the existing distinction in the nomenclature-selection by merit and selection-cum-seniority, has been dispensed with and the mode of promotion in all cases is made as 'selection' only. It was made clear that there should be no supersession in the matter of selection at any level and the element of selectivity shall be determined with reference to the relevant bench mark and accordingly grade officers would be classified as 'fit' or 'unfit' only. Those who are graded fit by the DPC shall be included W.P.(C).Nos.29252/14& con cases 2 and arranged in the select panel in the order of their inter se seniority in the feeder category. The promotions complained of were made in violation of the guidelines which were directly applicable. Since the petitioners were made to believe that the above supersession was in accordance with the existing recruitment rules, the petitioner did not challenge the above supersession immediately. Thereafter, they came to know of the interim order dated 01.03.2013 issued by this Court in W.P.(C).No.5771/2013 filed by the Rubber Board Extension Officers Union where this Court held that Rubber Board cannot deviate from the Office Memorandum issued by the Government of India. Accordingly, this Court passed an interim order staying the interview and also directed to promote the ADOs in the list prepared by the DPC in tune with the Office Memorandum. - 3.The petitioners therefore approached the Rubber Board challenging the earlier promotions made in violation of the Office Memorandum. Their requests were rejected stating that the request is found not admissible on administrative ground W.P.(C).Nos.29252/14& con cases 3 which is absolutely illegal. Pursuant to an application under the RTI Act, the petitioners were furnished with recruitment rules for the post of Assistant Secretary, along with the impugned promotion orders of the aforesaid juniors wherein method of promotion is shown as selection by interview from Section Officers having minimum three years experience in the grade. - 4.Heard the learned counsel for the petitioners, the learned Assistant Solicitor General of India and the learned Senior Counsel appearing for the Rubber Board. - 5.It is seen that these writ petitions are filed after a lapse of ten years, after the promotions complained of have been effected. This aspect has been specifically highlighted by the respondent Board in its pleadings. The contention of the petitioners is that the Office Memorandum relating to promotion by selection was directly applicable in the case of the promotions effected in 2006 as well. The petitioners became aware of their claim for promotion as against the W.P.(C).Nos.29252/14& con cases 4 contesting respondents only when copies of recruitment rules and promotion orders of juniors were obtained by them under the Right to Information Act. It is therefore urged that the orders of promotion being clearly illegal are liable to be interfered with. - 6.I have considered the contentions advanced as well as the pleadings and the materials on record. The promotions challenged were effected in the year 2006. No challenge had been raised by the petitioners against such promotions at any time before filing of these writ petitions. The Apex Court as well as this Court in the decisions reported in **State of Punjab v. Gurudev Singh** [(1991) 4 SCC 1] and **Pavithran v. State of Kerala** [2009(4) KLT 20 (FB)] held that persons who are promoted to a category have a right to sit back and to consider that their seniority and right to promotion have become final, in case such promotions are not called into question by procedure known to law within a reasonable time. In this case since the promotions have been effected as early as in 2006, I am of the opinion that the challenge made against W.P.(C).Nos.29252/14& con cases 5 the same, after lapse of ten years, is highly belated and that no relief can be granted to the petitioners in these writ petitions. These writ petitions are, therefore, dismissed. sd/- **Anu Sivaraman, Judge** sj