Sabarish R. v. Kerala State Beverages Corporation (M&M) Ltd.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **WEDNESDAY, THE 11TH DAY OF APRIL 2018 / 21ST CHAITHRA, 1940** **WP(C).No. 12364 of 2017** ## **PETITIONER:** **SABARISH.R., AGED 29 YEARS, S/O.RANGANATHAN, UPPER DIVISION CLERK, FL-1 SHOP NO.9013, KERALA STATE BEVERAGES CORPORATION, PALAKKAD.** **BY ADV.SRI.U.BALAGANGADHARAN** **RESPONDENT(S):** **1. THE KERALA STATE BEVERAGES CORPORATION (M&M) LTD., REPRESENTED BY ITS MANAGING DIRECTOR, SASTHAKRIPA OFFICE COMPLEX, SASTHAMANGALAM, THIRUVANANTHAPURAM -695 010.** ## **2. THE MANAGING DIRECTOR,** **THE KERALA STATE BEVERAGES CORPORATION (M&M) LTD., SASTHAKRIPA OFFICE COMPLEX, SASTHAMANGALAM, THIRUVANANTHAPURAM -695 010.** **3. GENERAL MANAGER (ADMINISTRATION), KERALA STATE BEVERAGES CORPORATION (M&M) LTD., SASTHAKRIPA OFFICE COMPLEX, SASTHAMANGALAM, THIRUVANANTHAPURAM -695 010.** **R1 TO R3 BY SRI.NAVEEN.T., SC,** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11-04-2018,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts 28/4/2018** ## **WP(C).No. 12364 of 2017 (U)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** - **EXHIBIT P1 A TRUE COPY OF THE APPOINTMENT ORDER OF THE PETITIONER DATED 9.1.2014 ISSUED BY 2ND RESPONDENT** - **EXHIBIT P2 A TRUE COPY OF THE PROCEEDINGS OF THE 2ND** - **EXHIBIT P3 A TRUE COPY OF THE RECRUITMENT RULES (RELEVANT PAGES)** - **EXHIBIT P4 A TRUE COPY OF THE JUDGMENT IN WPC 6858/2016** - **EXHIBIT P5 A TRUE COPY OF THE PROCEEDINGS OF THE 1ST** - **EXHIBIT P6 A TRUE COPY OF THE ORDER DATED 23.1.17 ISSUED BY SECOND RESPONDENT** - **EXHIBIT P7 A TRUE COPY OF THE REPRESENTATION DATED 09/02/2016 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT** - **EXHIBIT P8 A TRUE COPY OF THE COVERING LETTER DATED 09/02/2016 FORWARDING EXHIBIT P7 REPRESENTATION TO THE 3RD RESPONDENT** - **EXHIBIT P7 IN IA.NO.7711/2017 A TRUE COPY OF THE ORDER DATED 11/05/2017 ISSUED BY THE SECOND RESPONDENT** - **EXHIBIT P7 IN IA.NO.17079/2017 A TRUE COPY OF THE RELEVANT PAGE OF THE RANKED LIST DATED 25/07/2015 AGAINST CATEGORY NO.426/2014.** **EXHIBIT P8 TO P11 IN IA.NO.20195/2017** - **EXHIBIT P8 A TRUE COPY OF THE LETTER DATED 27/09/2017 ISSUED BY THE CORPORATION TO THE LEGAL ADVISOR** - **EXHIBIT P9 A TRUE COPY OF THE LEGAL OPINION RENDERED BY THE LEGAL ADVISOR TO THE CORPORATION DATED 05/10/2017** - **EXHIBIT P10 A TRUE COPY OF THE LETTER DATED 19/10/2017 SUBMITTED BY THE PETITIONER TO THE PIO, KSBBC** - **EXHIBIT P11 A TRUE COPY OF THE COVERING LETTER DATED 09/11/2017 ENCLOSING THEREWITH COPIES OF EXHIBITS P8 AND P9** **2/-** **-2-** ## **WP(C).No. 12364 of 2017 (U)** ## **RESPONDENT'S EXHIBITS:** **EXHIBIT R1(A) TRUE COPY OF THE ORDER DATED 16/10/2015 ISSUED BY THE KSBC. EXHIBIT R1(B) TRUE COPY OF THE ORDER DATED 4/3/2016 ISSUED BY THE KSBC EXHIBIT R1(C) TRUE COPY OF THE OPTION FORM SUBMITTED BY THE PETITIONER.** **/TRUE COPY/** **P.A.TO JUDGE** **sts 28/4/2018** ## **P.V.ASHA, J.** ## **W.P.(C) No.12364 of 2017-U** ## **Dated this the 11[th] day of April, 2018** ## **JUDGMENT** The petitioner is a UD Clerk working in FL-1 shop under the 1[st] respondent Corporation. He joined the Corporation as LD Clerk in the year 2014 on the advice of the Kerala Public Service Commission on the basis of Ext.P1 order of appointment. He completed his probation with effect from 9.1.2015. The LD Clerks in the Beverages Corporation has got two avenues of promotion. Though the normal hierarchy of promotion of an incumbent holding the post of LD Clerk is to the post of UD Clerk, those LD Clerks who are having degree in any subject are eligible for promotion as Assistant Grade II also. As per Ext.P3 recruitment rules direct recruitment can be resorted to, for appointment to the post of Assistant Grade II, only in the absence of qualified LD Clerks available for promotion. The petitioner's case is that by the time when he completed probation, 29 vacancies of Assistant Grade II were kept vacant saying that those vacancies were set apart by the respondents for compassionate appointment. Challenging this action of respondents’ petitioner approached this Court filing WP(C) No.6858 of 2016. By judgment dated 9.12.2016 this Court held that the action of the Corporation in reserving more W.P.(C) No.12364/17 **==> picture [14 x 9] intentionally omitted <==** than 5% of the vacancies for compassionate appointment is illegal. Therefore it was directed that the case of the petitioner for promotion as Assistant Grade II has to be determined afresh in the light of the judgment and the respondents were directed to determine whether ranking of the petitioner in the seniority would enable him to seek promotion to the vacancies in the post of Assistant Grade II. It was also directed to consider the candidature of the petitioner for promotion to the existing vacancies of Assistant Grade II in accordance with his eligibility and seniority in the cadre of LD Clerk. The respondents thereafter issued Ext.P5 order stating that 29 vacancies of Assistant Grade II which were set apart, arose prior to the date of effect of declaration of probation of the petitioner in the cadre of LD Clerk that is before 8.1.2015 and therefore his request cannot be considered, since he is not eligible on the date of occurrence of vacancy. This writ petition is filed challenging Ext.P5 order, pointing out that once this court found the accumulation of vacancies for compassionate appointment illegal, the petitioner should have been considered for promotion in accordance with his eligibility as and when he completed his probation and reason stated by the respondents is unsustainable. 2. Respondents have filed a counter affidavit stating that as per W.P.(C) No.12364/17 **==> picture [14 x 9] intentionally omitted <==** Ext.R1(A) order dated 16.10.2015 LD Clerks ranked up to 132 in the seniority list were promoted as Assistant Grade II. Remaining LD Clerks including the petitioner who was ranked at serial No.368 in the seniority list of LD Clerks were promoted to the post of UD Clerks on 4.3.2016 as per Ext.R1(B) order. Ext.R1(C) option submitted by the petitioner before his promotion is produced stating that petitioner was promoted as UD Clerk based on his option. Ext.R1(C) is the proforma in which column no.6 (b) reads as follows: _6(b): The post to which promotion may be effected (Assistant Grade II/Upper Division Clerk): If no post of Assistant Grade II available may be considered for UDC_ This option was submitted on 6.7.2015. According to the respondents petitioner's promotion was made in accordance with his option against an available vacancy of UD Clerk as per Ext.R1(B) order. It is stated that the claim of the petitioner for appointment to the post of Assistant Grade II by promotion was considered in accordance with his seniority and it was found that as on the date of occurrence of vacancies referred to by the petitioner he had not completed his probation and hence he could not be considered for such promotion. It is also stated that the petitioner cannot be granted promotion overlooking the LD Clerks from serial no.133 to 367 in the seniority list and most of the LD Clerks ranked in the said seniority list between sl.no.133-367 have W.P.(C) No.12364/17 **==> picture [14 x 9] intentionally omitted <==** accepted the promotion to the post of UD Clerk because the post of Assistant Grade II was not available and therefore the petitioner cannot be granted promotion. It is stated that petitioner did not accept his promotion as UD Clerk under protest. It is also stated that the petitioner accepted his promotion as UD Clerk without a demur. Therefore he cannot claim promotion as Assistant Grade II. 3. The petitioner has filed a reply affidavit producing Ext.P7 representation, he had submitted on 9.2.2016 in which he requested for promoting him as Assistant Grade II pointing out the declaration of his probation and stating that there was no application for compassionate appointment and if at all there is a claim, appointment has to be made to the post of LD Clerk only which is the entry cadre post. Ext.P7 representation was submitted prior to the promotion of the petitioner as per Ext.R2 (B) order which was in March 2016. 4. I heard the learned counsel for the petitioner as well as the learned Standing Counsel for the respondents. 5. The only reason stated in Ext.P6 order, for denying him promotion as Assistant Gr II is that the petitioner had not completed his probation as on the date of occurrence of vacancies. Respondents have kept 29 vacancies unfilled, setting apart the same for compassionate appointment and this court found that compassionate W.P.(C) No.12364/17 **==> picture [14 x 9] intentionally omitted <==** appointment cannot be made in bulk, when it has been limited to 5% of the vacancies. It is a case where the vacancies continued to remain unfilled even when petitioner completed his probation. For filling up such a vacancy it is not necessary that petitioner need not have completed probation as on the date when vacancy arose. In Ext.P6 respondents did not have a case that there was any other person who opted for promotion as Assistant Gr II. They did not deny promotion on the ground that there are seniors who have to be promoted. Now the question to be considered is the option Ext.R3(c). According to the respondents, Ext.R3(c) is his option for promotion as UD Clerk. But on a perusal it is clear that petitioner has clearly stated _: “if no post of Assistant Gr II is available, may be considered for UDC.”_ . It cannot be said that the option was purely for promotion as UD Clerk. As on the date of that option there were vacancies of Assistant Gr II. Therefore in case there are no options similar to Ext.R3(c), from any of the seniors of the petitioner, the respondents cannot deny promotion to petitioner. Even in Ext.P7 petitioner had requested for promotion as Assistant Gr II, pointing out the vacancies set apart for compassionate appointment. Therefore the denial of promotion to petitioner against one of the vacancies set apart for compassionate appointment is arbitrary. Petitioner was liable to be considered for promotion when he W.P.(C) No.12364/17 **==> picture [14 x 9] intentionally omitted <==** completed probation. At any rate he was liable to be considered at the time when this court directed consideration of his case for promotion. It is also pertinent to note that none of his seniors had challenged the setting apart of vacancies for compassionate appointment. By Ext.P4 judgment, this court had directed to consider the eligibility of petitioner for promotion in accordance with his seniority. In Ext.P6, the only ground for rejecting his request is that petitioner had not completed his probation, on the date of occurrence of vacancy. As rightly contended by the learned counsel for the petitioner, it is settled law since 1978, as held in _**Mohinder Jill vs. Chief Election Commissioner : AIR 1978 SC 851**_ that the respondent cannot supplement the reasons in the counter affidavit. Even otherwise the vacancies remained unfilled, on the date of declaration of his probation and even thereafter. Therefore the petitioner cannot be denied promotion on such untenable ground. The only ground stated in Ext.P6 is that the petitioner was not qualified as on the date of occurrence of vacancy, for not completing his probation when vacancy arose. The said reason is absolutely unsustainable. 6. In the counter affidavit the respondents' contention is that petitioner was ranked no.368 and LD Clerks from rank no.132 onwards were awaiting promotion at the time when those vacancies were W.P.(C) No.12364/17 **==> picture [14 x 9] intentionally omitted <==** available. It is also their contention that petitioner accepted the promotion as UD Clerk without any demur. But a perusal of Ext.R1(c) option would show that petitioner’s option was conditional. What he stated was that his option for promotion was for Assistant Grade II and if no post of Assistant Grade II is available may be considered for promotion as UD Clerk. Therefore it cannot be said that the petitioner accepted promotion without raising any objection or even any request for promotion to the post of Assistant Grade II. Even though the respondents have stated that there are several persons who submitted similar options, respondents have not stated the details of any such senior and have not produced any of such options. It is also pointed out that petitioner’s claim can be accepted only after overlooking the claim of the LD Clerks who were awaiting promotion at the relevant time. But the respondents do not have a case that any of the LD Clerks had raised any such claim. No materials are produced in support of the said contention to show that any of the LD Clerks under rank no.132 to 367 had raised any such claim. On the other hand respondents themselves produced Ext.R1(c) and petitioner has produced Ext.P7 representation immediately before his promotion to the post of UD Clerk. Going by the judgment in Ex.P4 respondents cannot raise any such contention in the writ petition. Respondents do W.P.(C) No.12364/17 **==> picture [14 x 9] intentionally omitted <==** not have any case that any of the LD Clerks had challenged the action of the respondents in setting apart the vacancies for compassionate appointment and the reason stated in Ext.P6 is only to the effect that petitioner had not completed his probation. The reason is unsustainable. Respondents should have taken action as directed in Ext.P4 and Ext.P5 judgments where this court directed to consider the claim of the petitioner against one of the existing vacancies of Assistant Grade II. Therefore Ext.P6 is set aside. There shall be a direction to the respondents to consider the case of petitioner for promotion as Assistant Gr II against 1 of the 29 vacancies which were set apart for compassionate appointment, along with the case of his seniors if any who have submitted options similar to Ext.R3(c) and pass orders within a period of two months from the date of receipt of a copy of the judgment. The writ petition is disposed of accordingly. Sd/- **P.V.ASHA JUDGE** rkc W.P.(C) No.12364/17 **==> picture [14 x 9] intentionally omitted <==** The judgment dated 11.04.2018 in WP(C) No.12364/2017 is corrected as per order dated 10.07.2018 in IA No.10204/2018 in WP(C) No.12364/2017 in the following manner. “The words and figures occurring as **“Ext.P6”** in the first sentence in paragraph 5, in paragraph 6 and in the operative portion of the judgment is corrected as **“Ext.P5”** and the words and figures **“Ext.R3(C)”** wherever it occurs in the judgment is corrected as **“Ext.R1(C)** ”. sd/- Registrar (Judicial)