S. Mohanadas v. Cochin Port Trust & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN** **TUESDAY, THE 10TH DAY OF JULY 2012/19TH ASHADHA 1934** ## **WP(C).No. 18808 of 2010 (A)** **---------------------------** ## **PETITIONER :** **--------------------** **S.MOHANADAS, WELFARE OFFICER, COCHIN PORT TRUST, WELLINGTON ISLAND,KOCHI.** **NOW RESIDING AT SONU NIVAS, H.NO.27/2648-B Y.S.ROAD, KADAVANTHRA, KOCHI-682020.** **BY ADVS.SMT. SUMATHI DANDAPANI (SR.) SRI.MILLU DANDAPANI** **RESPONDENT(S):** **--------------------------** **1. COCHIN PORT TRUST, WELLINGTON ISLAND, KOCHI-682009, REPRESENTED BY ITS SECRETARY.** **2. THE CHAIRMAN, COCHIN PORT TRUST, WELLINGTON ISLAND, KOCHI-682009.** **3. DEPARTMENTAL PROMOTION COMMITTEE FOR CLASS I POSTS, COCHIN PORT TRUST, WELLINGTON ISLAND KOCHI-682009., REPRESENTED BY ITS CHAIRMAN.** **BY ADVS. SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR SRI.K.JOHN MATHAI SRI.P.BENNY THOMAS SRI.P.GOPINATH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mn** **...2/-** ## **WP(C).No. 18808 of 2010 (A)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS :** - **EXT.P1 : COPY OF JUDGMENT DATED 22.1.2007 IN WP(C) NO. 25078/06 (I).** - **EXT.P2 : COPY OF JUDGMENT DATED 20.7.2009 IN WP(C) NO. 355 0F 2007.** - **EXT.P3 : COPY OF THE PROCEEDINGS NO. A9/WO/HC/2009-S DATED 7.12.2009 BY THE 2ND RESPONDENT TO THE PETITIONER.** - **EXT.P4 : COPY OF LETTER NO. AO/TRO/DPC/2009-S DATED 22.12.2009 OF THE 1ST RESPONDENT ISSUED TO THE PETITIONER.** - **EXT.P5 : COPY OF REPLY DATED 23.12.2009 OF THE PETITIONER SUBMITTED TO THE 1ST RESPONDENT.** - **EXT.P6 COPY OF ORDER NO. A9/WO/SM/2010-S DATED 4.6.2010 OF THE 1ST RESPONDNET TO THE PETITIONER.** - **EXT.P7 COPY OF JUDGMENT DATED 14.6.2007 OF THIS HONOURABLE COURT IN WP(C) NO. 29445 OF 2006.** - **EXT.P8 COPY OF JUDGMENT DATED 10.9.2007 IN WRIT APPEAL NO. 1730/07.** - **EXT.P9 COPY OF NOTICE NO. A9/WO/SM/2009-S DATED 28.10.2009 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.** - **EXT.P9(a) COPY OF LETTER DATED 2.11.2009 SENT BY THE PETITIONER TO THE 1ST RESPONDENT.** - **EXT.P9(b) COPY OF LETTER NO. A9/WO/SM/2009-S DATED 11.11.2009 OF THE 1ST RESPONDENT TO THE PETITIONER.** - **EXT.P9(c) PHOTOCOPY OF DETAILED EXPLANTION SUBMITTED BY THE PETITIONER DATED 19.11.2009, BEFORE THE 1ST RESPONDENT.** - **EXT.P10 PHOTOCOPY OF RECRUITMENT RULES OF WELFARE INSPECTOR, WELFARE OFFICER AND INDUSTRIAL RELATIONS OFFICER.** **(Contd...)** **WP(C).No. 18808 of 2010 (A)** **EXT.P11 PHOTOCOPY OF COCHIN PORT TRUST EMPLOYEES (RECRUITMENT, SENIORITY AND PROMOTION) REGULATIONS, 1964.** **EXT.P12 PHOTOCOPY OF RELEVANT EXTRACT OF THE KERALA FACTORIES (WELFARE OFFICERS) RULES, 1957 (PRODUCED ALONG WITH REPLY AFFIDAVIT DATED 9.2.2011.)** **EXT.P13 PHOTOCOPY OF AMENDMENT CARRIED OUT TO THE COCHIN PORT TRUST EMPLOYEES (RECRUITMENT, SENIORITY AND PROMOTION) REGULATIONS, 1964 BY THE 1ST RESPONDENT.** **EXT.P14 PHOTOCOPY OF NOTIFICATION ISSUED BY THE 1ST RESPONDENT INVITING APPLICATIONS FOR THE POST OF SENIOR WELFARE OFFICER, VIDE NO. A9/SR. WELFARE OFFICER/2011-S DATED 17.10.2011.** ## **RESPONDENT'S EXHIBITS :** **EXT.R1(a) : COPY OF THE JUDGMENT IN O.P. 462 OF 2003 AND CONNECTED CASES DATED 14.3.2006.** **EXT.R1(b) COPY OF THE DECISION OF THE BOARD OF TRUSTEES OF COCHIN PORT TRUST DATED 31.10.2006.** **EXT.R1(c) COPY OF THE COMMON JUDGMENT IN WRIT APPEAL NO. 1730 OF 2007 AND WRIT APPEAL 849/2008 DATED 10.9.2009.** **//TRUE COPY//** **P.S. TO JUDGE** **Mn** S.SIRI JAGAN, J. ================== W.P.(C).No. 18808 of 2010 ================== Dated this the 10[th] day of July, 2012 J U D G M E N T The petitioner in this writ petition started his career in the service of the Cochin Port Trust as a Shed Clerk on 23.4.1979. Thereafter, he was appointed by transfer as Lower Division Clerk on 15.10.1984. Later he was promoted as Upper Division Clerk on 28.11.1984. Still further, he was promoted as Accountant on 1.10.2001. When the post of Welfare Inspector in the service of the Cochin Port Trust fell vacant, the petitioner was considered for appointment to that post and he was appointed as such on 3.9.2002. The next promotion post available for Welfare Inspector is Welfare Officer. The petitioner was considered for promotion to that post and was promoted on 15.1.2003. While so, one Sri.P.S. Mohammed Nazeer challenged the appointments of one Sri.Mohammed Rafi and the petitioner herein as Welfare Inspectors before this Court by filing O.P.No.462/2002 on the ground that they did not possess the qualification of Diploma in Social Service, which was the qualification prescribed for the post and that the qualification of LL.B. with Labour Law as an elective subject possessed by them w.p.c.18808/10 - : 2 :- is not equivalent to Diploma in Social Service. By judgment dated 14.3.2006, that original petition was disposed of directing the Cochin Port Trust to consider the issue and pass orders. On 30.8.2006, the Board of the Cochin Port Trust adopted a resolution to refer the matter to an expert on the subject. On 28.10.2006, the expert submitted a report to the effect that LL.B with Labour Law as elective subject, which was the qualification possessed by Sri.Mohammed Rafi and the petitioner is not equivalent to Diploma in Social Service, which is the qualification prescribed for the post of Welfare Inspector. While so, there occurred a vacancy in the post of Industrial Relations Officer on 1.8.2006, promotion to which was from among Welfare Officers. The petitioner was the only person qualified to hold that post. On 5.8.2006, Departmental Promotion Committee was convened and the petitioner was called for an interview on 8.8.2006. But no appointments were made pursuant to that interview. The Departmental Promotion Committee recommended that the post of Industrial Relations Officer be filled up by direct recruitment. Challenging the said decision, the petitioner filed W.P.(C).No. 25078/2006 on 20.9.2006 against the denial of promotion and the decision to fill up the post of w.p.c.18808/10 - : 3 :- Industrial Relations Officer by direct recruitment. While so, the said Sri.Mohammed Rafi filed W.P.(C).No.29445/2006 on 7.11.2006 challenging the decision of the Board to the effect that LL.B. with Labour Law is not equivalent to Diploma in Social Service. That writ petition was pending. By Ext.P1 judgment dated 22.1.2007, W.P.(C).No. 25078/2006 filed by the petitioner was allowed. The learned Single Judge, who passed the judgment granted three reliefs (1) setting aside the decision of the Departmental Promotion Committee finding the petitioner unsuitable for promotion to the post of Industrial Relations Officer and its recommendation to fill up the post by direct recruitment are unsustainable, (2) directing the Port Trust to forthwith promote the petitioner as Industrial Relations Officer, and (3) leaving the questions as to whether the petitioner is entitled to be promoted with effect from 1.8.2006 viz., the date on which, the post of Industrial Relations Officer fell vacant, and whether he is entitled to monetary benefits on that post, open to be agitated before the respondents in accordance with law on a representation to be filed by the petitioner claiming such benefits. The Port Trust took up the matter in appeal before the Division Bench by filing W.A.No.355/2007. By Ext.P2 judgment dated 20.7.2009, the w.p.c.18808/10 - : 4 :- Division Bench held that the decision to promote the petitioner was not correct and set aside the same holding that since it is only because of the absence of records to conclude the objective assessment made by the Departmental Promotion Committee, the learned Single Judge interfered with the matter and if that be so, the learned Single Judge ought to have left the matter to the Port Trust to interview the petitioner among the qualified hands and then to take a decision. On that finding the 2[nd] direction was quashed. In the meanwhile, W.P.(C).No. 29445/2006 filed by Sri.Mohammed Rafi was dismissed by a learned Single Judge. W.A.No.1730/2007 filed against that judgment by Sri.Mohammed Rafi was also dismissed on 10.9.2009 by Ext.P8 judgment. Thereafter, Sri.Mohammed Rafi was reverted from the post of Welfare Officer to the post of Stenographer Grade I by order dated 28.10.2009. Ext.P9 show cause notice was issued to the petitioner on 28.10.2009 directing him to show cause why he should not also be reverted as Accountant, insofar as he was also not qualified to the post of Welfare Inspector. The petitioner filed a reply. While so, one Sri.Mohammed Nazeer filed W.P.(C).No.34395/2009 for a direction to appoint him to the post of Welfare Inspector. While w.p.c.18808/10 - : 5 :- the proceedings pursuant to the show cause notice issued to the petitioner for reversion as Accountant were pending, the petitioner was again called for an interview to the post of Industrial Relations Officer to be held on 23.12.2009. But Ext.P6 order was passed reverting the petitioner to the post of Accountant on 4.6.2010. It is challenging those proceedings, the petitioner has filed this writ petition on 15.6.2010. By an interim order dated 18.6.2010 passed in this writ petition, the reversion of the petitioner was stayed by this Court. While so, the Port Trust abolished the post of Industrial Relations Officer and created a new post as Senior Welfare Officer on 28.10 2010, by Ext.P13, prescribing different qualifications than those for the post of Industrial Relations Officer. Consequently, Ext.P14 notification dated 17.10.2011 was also issued inviting applications for the post of Senior Welfare Officer. The petitioner filed an application to amend the writ petition challenging the subsequent proceedings also, which was allowed. As per the amended writ petition, the petitioner seeks the following reliefs; - “i) to issue a writ of Certiorari or any other appropriate writ, order or direction quashing Ext.P6 order dated 04.06.2010. - ii) to issue a writ of mandamus or any other appropriate writ, order or direction commanding the 1[st] Respondent to promote the petitioner to the post of Industrial w.p.c.18808/10 - : 6 :- Relations Officer forthwith in compliance with the direction of this Honourable Court contained in Ext.P1 and P2 judgments. - iii) to declare that the petitioner is fully qualified to be promoted to the post of Industrial Relations Officer, - iv) to issue such other and further reliefs as this Honourable Court may deem fit and proper in the facts and circumstances of the case. - iv(a) issue a writ of certiorari of (sic) any other appropriate writ, order or direction, quashing Exhibit P13 amendment carried out by the 1[st] respondent to the Cochin Port Trust Employees' (Recruitment, Seniority and Promotion) Regulations, 1964, to the post of Welfare Officer and Re-designating the post of Industrial Relations Officer, - iv(b) issue a writ of certiorari of (sic) any other appropriate, writ, order or direction, quashing Exhibit P14 Notification issued by the 1[st] respondent inviting Applications for the post of Senior Welfare Officer.” 2. A counter affidavit has been filed to the unamended writ petition and a statement to the amended writ petition. 3. According to the petitioner after having appointed the petitioner to the post of Welfare Inspector as early as on 3.9.2002 and thereafter he having been promoted as Welfare Officer on 15.1.2003, the respondents cannot take a decision in 2010 reverting the petitioner to the post of Accountant on the ground that the petitioner was not qualified to be appointed as Welfare Inspector on 3.9.2002. The petitioner submits that the decision of the subject expert appointed by the Board of the Cochin Port Trust holding that LL.B with Labour Law as elective w.p.c.18808/10 - : 7 :- subject was not equivalent to Diploma in Social Service and, therefore, the petitioner is not qualified to hold the post of Welfare Inspector, was available to the Cochin Port Trust when Ext.P1 judgment was passed by a learned Single Judge on 22.1.2007 and at the time of passing Ext.P2 judgment in W.A.No.355/2007 on 20.7.2009 and the Port Trust did not consider it necessary to bring that fact to the attention of this Court and to contest the case of the petitioner for promotion as Industrial Relations Officer on the basis of that fact also. It was also open to the respondents to revert him as Accountant, when Sri.Mohammed Rafi was reverted, which has also not been done. Therefore, according to the petitioner, it is too late in the day for the respondents to contend that the petitioner is not eligible to be appointed as Welfare Inspector after having suffered Exts.P1 and P2 judgments, wherein the petitioner was found to be fully qualified for promotion to the post of Industrial Relations Officer and the Cochin Port Trust was directed to consider that question also. He also submits that in view of the decision of this Court in **Rajalekshmi v. State of Kerala** , 1992 (1) KLT 458, even assuming that the petitioner is not qualified to be appointed as Welfare Inspector, after having been appointed w.p.c.18808/10 - : 8 :- him to that post on 3.9.2002 and after promoting him to the post of Welfare Officer on 15.1.2003, the respondents cannot now take the stand that he is liable to be reverted as Accountant by cancelling his promotion as Welfare Officer and appointment as Welfare Inspector after a period of more than seven years. 4. The learned Standing Counsel for the respondents would submit that although in Ext.P1 judgment the learned Single Judge had found the petitioner fully qualified for promotion as Industrial Relations Officer and suitable for the post directing the Port Trust to promote the petitioner as Industrial Relations Officer, those findings were vacated by the Division Bench in Ext.P2 judgment, leaving it open to the respondents to consider the question of promotion again after interviewing the petitioner among the qualified hands and to take a decision. According to the learned Standing Counsel, that direction includes liberty to the Cochin Port Trust to consider the question of qualifications of the petitioner to hold the post of Welfare Inspector itself, which only has now been done. It is submitted before me that the appointments of the petitioner and Sri.Mohammed Rafi were subject matter of the decisions of this Court and ultimately, as per the direction of this Court, that w.p.c.18808/10 - : 9 :- issue was considered and a decision was taken, which was confirmed by this Court holding that the petitioner and the said Sri.Mohammed Rafi do not possess the qualifications prescribed for the post of Welfare Inspector. The learned counsel points out that at no point of time did the petitioner challenge the decision of the Board holding that LL.B. Degree with Labour Law as an elective subject possessed by the petitioner is not equivalent to the qualification prescribed for the post of Welfare Inspector and, therefore, it is not open to him to challenge the order reverting him to the post of Accountant. Therefore, the learned Standing Counsel for the respondents submits that the action taken by the Cochin Port Trust is perfectly within their powers and, therefore, it is not liable to be interfered with by this Court. 5. I have considered the rival contentions in detail. 6. As the facts themselves suggest, the issue involved in this writ petition is a little complex, which was made complex by the action or inaction by both parties. It is true that in O.P.No. 462/2003 filed by Sri.P.S.Mohammed Nazeer, this Court directed the respondents to consider the issue and pass orders. If the Port Trust had done something immediately thereafter, perhaps the petitioner could not have raised these contentions in this writ w.p.c.18808/10 - : 10 :- petition. But there was a delay of at least 4 years after the petitioner was promoted as Welfare Inspector, for the respondents to take a decision on the question of equivalency of the qualification. In the meanwhile, the petitioner was further promoted as Welfare Inspector, to hold which post, admittedly, the petitioner has the requisite qualifications. Although the respondents were aware of the fact that the decision taken by them disentitled the petitioner for appointment as Welfare Inspector, they did not take any action to revert the petitioner as Accountant in accordance with their decision. When the writ petition culminated in Ext.P1 judgment was being heard, the fact relating to the non-equivalency of the qualification was available to the respondents. They did not choose to bring that fact for consideration of this Court, while passing Ext.P1 judgment on 22.1.2007 or while the Division Bench passed Ext.P2 judgment on 20.7.2009. At those times, the respondents were content to canvass the question as to whether the petitioner was eligible for promotion as Industrial Relations Officer, giving a complete go by to the question as to whether the petitioner was originally entitled to be appointed as Welfare Inspector and to hold the post of Welfare Officer, which was the feeder post for the post of w.p.c.18808/10 - : 11 :- Industrial Relations Officer. I cannot ignore Exts.P1 and P2 judgments. When this Court issues writs, the same cannot be futile writs. The judgments of this Court have to be implemented if no intervening events make it not possible. In the decision in **Rajalekshmi's case** (supra), a learned Single Judge of this Court has held that when a person is promoted, even though not qualified and, given further promotions and allowed to continue for more than 10 years, that person cannot be reverted after a lapse of several years on the ground of want of qualification. Of course, although Sri.P.S.Mohammed Nazeer had challenged the appointment of the petitioner as Welfare Inspector in 2003, this Court only directed consideration of the issue by the Cochin Port Trust by judgment dated 14.3.2006. The Port Trust got the issue clarified through an expert only on 28.10.2006, more than 3½ years later. Immediately thereafter, it was perfectly open to the respondents to revert the petitioner as Accountant, which also they did not choose to do. Of course, the counsel for the respondents would take a contention that they did not do so only because that issue was pending consideration by this Court in the writ petition filed by Sri.Mohammed Rafi, viz., W.P.(C).No. 29445/2006, which was dismissed only on 14.6.2007. But that is w.p.c.18808/10 - : 12 :- not a reason not to implement the decision as against the petitioner, who did not choose to challenge the decision of the Port Trust in the matter of equivalency of the qualification of the petitioner to the qualification prescribed for the post of Welfare Inspector. In fact the petitioner was served with notice to show cause why he should not be reverted only on 28.10.2009, that too, after Ext.P2 judgment, by which, he was directed to be considered for promotion to the post of Industrial Relations Officer. If the respondents had any case that the petitioner could not have been considered for promotion to the post of Industrial Relations Officer as directed in Ext.P2 judgment, the minimum they should have done is to seek review of the judgment bringing that fact also into the writ appeal and seeking appropriate directions in that regard. On the other hand, it is an admitted fact that the Division Bench was requested to hear the writ appeal along with the writ appeal filed by Sri.Mohammed Rafi in respect of the equivalency of the qualification and this Court refused to hear the writ appeals together. Therefore, Ext.P2 judgment was passed by this Court conscious of the fact that in respect of the other issues, another writ appeal was still pending and knowing fully well chose to direct consideration of the w.p.c.18808/10 - : 13 :- petitioner for promotion to the post of Industrial Relations Officer without making the same subject to the result of the other writ appeal pending. It is an admitted fact that the petitioner functioned as Welfare Inspector and Welfare Officer for long periods efficiently. As held by this Court in Exts.P1 and P2 judgments, he had very good credits in his confidential records during the periods of his service as Welfare Officer and this Court found that he is even qualified and fit to be promoted as Industrial Relations Officer. In such circumstances, I am of opinion that it is totally unjust to revert him to the post of Accountant after eight long years. In fact at the time of appointment as Welfare Inspector, both the petitioner as well as the respondents were convinced that the petitioner had the qualifications prescribed for the post of Welfare Inspector. In such circumstances, it would have been in the fitness of things for the respondents to implement their decision on the equivalency of the qualification prospectively. Of course, I am not ignoring the fact that this Court had in the writ petition and the writ appeal filed by Sri.Mohammed Rafi confirmed the decision of the Port Trust holding that the LL.B. with Labour Law as elective subject is not equivalent to Diploma in Social Service, w.p.c.18808/10 - : 14 :- which was the qualification prescribed for the post of Welfare Inspector. It must be remembered that the qualification prescribed for the post of Welfare Officer was in fact LL.B. with Labour Law as elective subject, which the petitioner possessed. In view of the above facts, I am of opinion that the ratio of the decision in **Rajalekshmi's case** (supra), should be applied to the facts of this case holding that the petitioner cannot now be reverted to the post of Welfare Inspector. 7. Now what remains to be considered is the other question regarding the validity of the amendment of the recruitment rules applicable to the employees of the Cochin Port Trust, abolishing the post of Industrial Relations Officer and creating a new post of Senior Welfare Officer with different qualifications. The Division Bench had in fact in Ext.P2 judgment categorically found that there was no malafides on the part of the respondents in finding the petitioner not fit for being promoted as Industrial Relations Officer. The learned Standing Counsel for the respondents would take a stand that the abolition of the post and creation of a new post are in tune with the all India policy decision regarding restructuring of the various posts in Port Trusts all over India and it was not a w.p.c.18808/10 - : 15 :- decision for the purpose of avoiding the petitioner. It is submitted that the process started in 2006. The petitioner cannot contend that the Cochin Port Trust cannot abolish a post or create a new post unless the petitioner has a case of malafides in that matter. The Division Bench had categorically held in Ext.P2 that the respondents were not motivated by malafides in their action in not promoting the petitioner. In the peculiar facts and circumstances of the case, I am not inclined to annul the decision of the respondents in the matter of abolition of the post of Industrial Relations Officer and creating a new post insofar as that was in implementation of the national policy regarding restructuring. Therefore, that prayer of the petitioner is rejected. Consequently, Ext.P6 order reverting the petitioner to the post of Accountant is quashed. It is declared that the petitioner is entitled to continue as Welfare Officer. The writ petition is allowed as above. sdk+ Sd/S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge w.p.c.18808/10 - : 16 :-