P.K. Karim and P.V. Thomas v. Kerala State Warehousing Corporation

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **WEDNESDAY, THE 6TH DAY OF JANUARY 2016/16TH POUSHA, 1937** ## **WP(C).No. 26400 of 2009 (T)** **----------------------------** ## **PETITIONERS:** **---------------------** ## **1. P.K.KHARIM, AGED 49 YEARS** **S/O.P.M.KHADIR KUTTY, SHABEENA MANZIL, ERAMALLUR CHERTHALA-688537, ALLEPPY DIST.NOW WORKING AS SR.ASST., KERALA STATE WAREHOUSING CORPN., ZONAL OFFICE, TRIPUNITHURA.(WAS PROMOTED AS SR.ASST. ON 10-9-200** **2. P.V.THOMAS, S/O.VARGHESE, AGED 52 YEARS, PARAYIDATHIL HOUSE, CHANTHAKUNNU P.O., NILAMBUR679329, MALAPPURAM DISTRICT. NOW WORKING AT KERALA STATE WAREHOUSING CORPORATION, RAMANKUTHU, P.O. NILAMBUR-679329, MALAPPURAM DISTRICT (WAS PRMOTED AS SENIOR ASSISTANT ON 26.2.2003. HE OUGHT TO HAVE BEEN PROMOTED ON 10.9.2002)** ## **BY ADV. SRI.PEEYUS A.KOTTAM** ## **RESPONDENT:** **-----------------------** **KERALA STATE WAREHOUSING CORPORATION, ERNAKULAM, COCHIN-682016, REPRESENTED BY ITS MANAGING DIRECTOR.** **BY ADVS. SRI.E.K.NANDAKUMAR SRI.MAJNU KOMATH, SC, K.S.W.C. SRI.K.JOHN MATHAI SRI.P.BENNY THOMAS SRI.P.GOPINATH SRI.S.RAMU** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 26400 of 2009 (T)** ## **APPENDIX** ## **PETITIONERS' EXHIBITS** - **P1: TRUE COPY OF SENIORITY LIST OF CASUAL EMPLOYEES OF RESPONDENT** - **P2: TRUE COPY OF PROCEEDINGS DATED 30.03.2007 ISSUED BY THE RESPONDENT** - **P3: TRUE COPY OF PROCEEDING DATED 10.05.2007 ISSUED BY THE RESPONDENT** - **P4: TRUE COPY OF CIRCULAR DATED 12.04.2007 ISSUED BY KERALA STATE WAREHOUSING CORPORATION** - **P5: TRUE COPY OF REPRESENTATION DATED 12.5.2009 SUBMITTED BY PETITIONERS** - **P6: TRUE COPY OF PROCEEDINGS DATED 12.5.2009 ALONG WITH PROVISIONAL SENIORITY LIST ADHEARING RESERVATION PRINCIPLES ISSUED BY RESPONDENT** - **P7: TRUE COPY OF ORDER BEARING NO.KWC-EST - PROMOTION- SAM - 2010-2011 DATED 7.2.2011** ## **RESPONDENT'S EXHIBITS** **NIL** **//TRUE COPY//** ## **P.A. TO JUDGE** **JJJ** ## **K. VINOD CHANDRAN, J.** -----------------------------------------W.P.(C) No. 26400 of 2009 (T) -----------------------------------------Dated this the 6[th] day of January, 2016 ## **J U D G M E N T** The petitioners are aggrieved with the fact that the petitioners were not promoted as Assistant Managers, at the time when their juniors were promoted. Both petitioners have retired from the service of the respondent Corporation, that too, as Assistant Managers. 2. The petitioners were appointed as temporary workers on 1.10.1996 in the respondent Corporation. Subsequently, after prolonged litigation, which went up to the Hon'ble Supreme Court, the petitioners along with some others were directed to be considered for regularisation, which was considered as per Ext.P2. A total of 60 persons, including the petitioners, were ## **W.P.(C) No. 26400/2009** **-2-** regularised by Ext.P2 order dated 30.3.2007 with effect from the date of joining in the post. Both the petitioners, as evidenced from Ext.P2, have joined the post on 1.10.1996. The petitioners were aggrieved with the promotions made of the juniors of the petitioners. Immediately it is to be noticed that, from Ext. P3 order it is evident that the juniors of the petitioners were promoted as Senior Assistants in the year 2005 and 2006 and then as Assistant Managers. The said promotions are also revealed to be made on the basis of the extant rules, which were subsequently altered. The petitioners do not also disclose as to when they themselves were promoted as Senior Assistants or their seniority position in the cadre of Senior Assistants. What is significant is that the petitioners never challenged the promotion of their juniors to the post of Senior Assistants, nor the subsequent promotion as **-3-** ## **W.P.(C) No. 26400/2009** Assistant Managers, within a reasonable time. It is also pertinent that though the alleged juniors of the petitioners, were specifically noticed by their names, in the writ petition; none were impleaded. 3. The petitioners contend that the promotion policy itself, by which the juniors of the petitioners were promoted was cancelled and hence, the petitioners are entitled to be considered for promotion from the date of their entitlement or from the date in which their immediate juniors having been promoted. The petitioners, admittedly, have been promoted as Assistant Managers on 17.3.2010 and has retired from service respectively on November, 2015 and June, 2015. The learned Counsel for the petitioners submit that the writ petition itself was filed in the year 2009 and though they retired during the pendency of the writ petition, they are entitled to be granted promotion on ## **W.P.(C) No. 26400/2009** **-4-** their due dates and also entitled to monetary benefits. The learned Counsel also would contend that an Interlocutory Application was filed as early as on 2011, to implead the juniors of the petitioners, which has not been allowed till date. The learned counsel for the petitioners submit that he would, even at this point, take out notice against the additional respondents sought to be impleaded. 4. At the outset, it is to be noticed that there would be no purpose served in sending a notice to the alleged juniors now especially since there could be no promotion made or fixation of seniority made at this point, since both the petitioners have retired from service. Further, it is to be noticed that the Interlocutory Application filed for impleadment in the year 2011 was never moved, despite the petitioners having filed a number of petitions for early hearing. ## **W.P.(C) No. 26400/2009** **-5-** The additional respondents, sought to be impleaded, were promoted far earlier and they have been continuing in the higher posts. They are entitled to an amount of certainty in their service and to be continued in the promoted post since the promotions made cannot be unsettled after a long period of time. A notice issued now would seriously prejudice their rights acquired by passage of time. Here, it is also pertinent that promotions are contended to have been cancelled by Ext.P4 dated 14.4.2007 and even then the petitioners sought to approach this Court only after two years with the above writ petition. 5. The peculiar facts surrounding the controversy also has to be noticed. An Executive Committee of the Board of Directors is said to have taken a decision in 2004, to provide for a ratio of 2:1, for graduates and non-graduates for promotion from Assistants to Senior ## **W.P.(C) No. 26400/2009** **-6-** Assistants. The persons referred to in Ext.P-3 were promoted on that basis. Subsequently the Board of Directors in their 237[th] meeting amended the rules pertaining to promotion from Senior Assistants to Assistant Managers as follows: “(2) 50% by promotion from among Senior Assistants/ Confidential Assistants/ Computer Operator with 5 years experience and graduation or from graduate Senior Assistants with 8 years service as Senior Assistant and Assistant put together. In case of non-graduates promotion will be given after 12 years experience and after written test and interview. 50% for written test and 50% for interview.” Hence when the promotions were made, both to the post of Senior Assistants and Assistant Managers, the graduates had a definite edge over the non-graduates. In the former, by virtue of the ratio and in the latter, for reason of 50% reservation to graduate employees in the ## **W.P.(C) No. 26400/2009** **-7-** feeder category, with a required period of service. The juniors who were promoted were all graduates. The petitioners, who are under graduates, could not have claimed seniority above those persons since the graduates were definitely given an edge in the regulation for promotions as it existed then. 6. The cancellation was made as per the decision of the Board of Directors in their 243[rd] meeting held on 29.3.2007. The Executive Committee was found to have no powers to amend the rules of promotion, and the ratio prescribed for promotion to Senior Assistants was found to be not proper. The Board of Directors even went back on the amendment made by themselves, to the rules, regulating promotion to Assistant Manager, as revealed from Ext.P-4. This is the ground on which the writ petition has been filed. ## **W.P.(C) No. 26400/2009** **-8-** 7. The petitioners having not challenged any of the promotions or the amendments to the rules of promotion, has thought it fit to claim benefit of promotion on the basis of Ext. P-3, which cancelled the promotions made earlier. By Ext.P4 the Managing Director, as authorised by the Board, reverted to the promotion policy as propounded by Circular No. C/Circular/91-92 dated 30.03.1991. It is in such circumstance that the petitioners contend that the promotions made of juniors are to be reviewed since the policy of preference to graduates has been set aside. It is to be observed that, in the context of the promotion policy having not been challenged by any of the affected employees; those who got promoted on the basis of that policy acquires a vested right to continue in their higher post. Every subsequent amendment made to the rules and regulations, whether on the ground of a valid ## **W.P.(C) No. 26400/2009** **-9-** change of policy or the earlier amendment having been brought out without authority; cannot unsettle the promotions already made. Sufficient reliance can be garnered for the above proposition from **T.R. Kapur & ors. v. State of Haryana & ors. - 1986 SCC (Supp) 584** , since those already promoted would have a vested right to be continued. 8. Further even if the affected parties are not in the party array, this Court cannot shut its eyes to their rights too. True, as of now, there would be no disturbance caused to their position since the petitioners have retired. But that cannot be the only reason to grant the petitioners the relief which would result in liability being cast on the respondent Corporation; definitely an entity covered under Article 12 of the Constitution of India. A liability on a public authority cannot be easily found, on merely the fact that ## **W.P.(C) No. 26400/2009** **-10-** the person claiming relief is a minuscule part of the citizenry; herein two. The State represents the whole mass of its subjects of varied composition and different hues, vexed by their individual problems. Monetary compensation hence has to be made with circumspection, since it affects the tax payer at large and the public exchequer in particular. For reason alone of the petitioners having retired and none of the other employees being affected; this Court cannot grant retrospective promotion or consequential monetary benefits. The writ petition is defective for reason of nonimpleadment of necessary parties and suffers from the aspect of sit back theory, for reason of the delay occasioned in challenging the promotions. 9. One further aspect which assumes significance is that by Ext.P3, promotions were sought to be cancelled, against which, the persons who were ## **W.P.(C) No. 26400/2009** **-11-** promoted to the higher post approached this Court in W.P.(C) No. 16263/2007. This Court is said to have directed the Corporation to decide whether the petitioners therein could be retained in service as Assistant Managers without reverting them, having regard to the cadre strength and the number of Assistant Managers presently in service, by order dated 6.7.2009. Subsequently, the Board of Directors, in its 258[th] meeting, by Resolution No.2817 dated 15.1.2011, decided to accommodate the said persons in the post of Assistant Managers, with effect from the date they were originally promoted to the post of Assistant Managers. The promotions affected being on the basis of the extant rules, it cannot also be said that the vested right acquired by the promotees, by retrospective amendments made could be easily meddled with. Be that as it may, the petitioners have not chosen to ## **W.P.(C) No. 26400/2009** **-12-** challenge the said order also. Merely on the fact that such orders were passed during the pendency of the present writ petition, the petitioners cannot absolve themselves from the liability to challenge the subsequent order and implead the affected parties. 10. It is also of considerable import that the petitioners claim promotion to the post of Assistant Manager on the basis of their seniority position in the entry cadre of Assistants, while there is admittedly an intermediary position of Senior Assistants; the seniority position in which is not disclosed. The fact also remains that the petitioners had not impleaded any of the persons in Ext.P3 at the time of filing of the writ petition and the prayer sought to implead as per I.A. No.2980 of 2011 was never urged and notice issued to the three additional respondents, who are said to be juniors to the petitioners. The reversion made of the ## **W.P.(C) No. 26400/2009** **-13-** promotees in Ext.P3, was directed to be reconsidered and the Board had taken a specific decision in the year 2011 to grant them promotion from the date on which they were granted promotion as per the earlier existing rules. The said order also has not been challenged by the petitioners. The petitioners have now retired and had also been promoted in the year 2009. In such circumstance, the writ petition is defective, devoid of merit and nothing survives on the perceived cause. The writ petition hence is liable to be dismissed. No Costs. Sd/K.VINOD CHANDRAN, JUDGE jjj 7/1/16