## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT:**
**THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN**
**THURSDAY, THE 5TH DAY OF JANUARY 2017/15TH POUSHA, 1938**
**WP(C).No. 29667 of 2014 (G)**
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**PETITIONER(S):**
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**SURESH CHANDRAN PILLAI, AGED 54 YEARS, S/O.GOPALAKRISHNA PILLAI, “ASWATHI BHAVAN”, MULLAKKAL, PANMANA P.O., CHAVARA, KOLLAM.**
**BY ADV. SRI.P.SIVARAJ**
## **RESPONDENT(S):**
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**KERALA MINERALS & METALS LTD., KOLLAM, REPRESENTED BY ITS MANAGING DIRECTOR, CHAVARA, KOLLAM-690 001.**
**BY ADV. SMT.LATHA KRISHNAN**
**THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23-11-2016 THE COURT ON 05-01-2017, DELIVERED THE FOLLOWING:**
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## **WP(C).No. 29667 of 2014 (G) ----------------------------**
## **APPENDIX**
**PETITIONER(S)' EXHIBITS -----------------------**
**EXHIBIT-P1: A TRUE COPY OF THE REPRESENTATION DTD.7.8.2014 SUBMITTED BY THE PETITIONER BEFORE THE MANAGING DIRECTOR OF THE RESPONDENT. EXHIBIT-P2: A TRUE COPY OF THE REPLY DTD.17.2.2015 BY THE DY. GENERAL MANAGER (P&A) (PRODUCED ALONG WITH I.A. FOR ACCEPTING ADDITIONAL DOCUMENTS.) EXHIBIT-P3: A TRUE COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE APPELLATE AUTHORITY UNDER THE RIGHT TO INFORMATION ACT (PRODUCED ALONG WITH I.A. FOR ACCEPTING ADDITIONAL DOCUMENTS) EXHIBIT-P4: A TRUE COPY OF THE REJOINDER DTD.22.5.2015 SUBMITTED BEFORE THE RESPONDENT (PRODUCED ALONG WITH I.A. FOR ACCEPTING ADDITIONAL DOCUMENTS.) EXHIBIT-P5: TRUE COPIES OF THE TREATMENT RECORDS OF THE PETITIONER (PRODUCED ALONG WITH REPLY AFFIDAVIT) EXHIBIT-P6: TRUE COPIES OF THE TREATMENT RECORDS OF THE PETITIONER'S WIFE SMT.AMBILY (PRODUCED ALONG WITH REPLY AFFIDAVIT) EXHIBIT-P7: TRUE COPIES OF THE TREATMENT RECORDS OF THE PETITIONER'S DAUGHTER MS.ASWATHY A.S. (PRODUCED ALONG WITH REPLY AFFIDAVIT) EXHIBIT P8: TRUE COPY OF INTERIM ORDER DTD.10.11.2014 IN WPC.NO.29667/2014 (PRODUCED ALONG WITH I.A.10710/2015 IN WP.29667/2014.**
**EXHIBIT P9: TRUE COPY OF ORDER DTD.16.7.2015 IN WPC.NO.29667/2014 (PRODUCED ALONG WITH I.A.10710/2015 IN WP.29667/2014) EXHIBIT P10: TRUE COPY OF THE COMMUNICATION DTD.17.2.2015 OF THE RESPONDENT COMPANY (PRODUCED ALONG WITH AMENDMENT APPLICATION IN WPC.29667/2014)**
**RESPONDENT(S)' EXHIBITS -----------------------**
**EXT.R1(a): TRUE COPY OF THE GRUIDELINES FOR PROMOTION OF WORKMEN IN THE TITANIUM DIOXIDE PIGMENT UNIT.**
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**WP(C).No. 29667 of 2014 (G)**
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- **EXT.R1(b): TRUE COPY OF THE PERFORMANCE APPRAISAL REPORTS GIVEN TO THE PETITIONER FOR THE YEAR 1992.**
- **EXT.R1(c): TRUE COPY OF THE PERFORMANCE APPRAISAL REPORTS GIVEN TO THE PETITIONER FOR THE YEAR 1998.**
- **EXT.R1(d): TRUE COPY OF THE PERFORMANCE APPRAISAL REPORTS GIVEN TO THE PETITIONER FOR THE YEAR 2000.**
- **EXT.R1(e): TRUE COPY OF ORDER DTD.13.4.2010**
- **EXT.R1(f): TRUE COPY OF ORDER DTD.2.7.2014.**
- **EXT.R1(g): TRUE COPY OF GRADATION LIST OF TECHNICIAN CUM FITTER GRADE A.**
- **EXT.R1(h): TRUE COPY OF RELEVANT PAGE OF THE MEMORANDUM OF SETTLEMENT DTD.10.1.1992.**
- **EXT.R1(i): TRUE COPY OF RELEVANT PAGE OF THE MEMORANDUM OF SETTLEMENT DTD.8.10.2003.**
- **EXT.R1(j): TRUE COPY OF RELEVANT PAGE OF THE MEMORANDUM OF SETTLEMENT DTD.26.2.2009.**
- **EXT.R1(k): TRUE COPY OF THE COMMUNICATION DTD.17.2.2015.**
**//TRUE COPY//**
**P.S.TO JUDGE**
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## **ANU SIVARAMAN, J.**
## **= = = = = = = = = = = = = = =**
## **W.P.(C).No.29667 of 2014 = = = = = = = = = = = = = = = Dated this the 5[th] day of January, 2017**
## **JUDGMENT**
## 1.The prayers in this writ petition are as follows:-
- I. Issue a writ of mandamus or any other appropriate writ order or direction, commanding and compelling the respondent to promote the petitioner to the post of Assistant Plant Engineer in the respondent company, after curing the anomalies if any in the seniority list of Technician-cum-Fitter Grade-A.
- II.Issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondent to consider and pass orders on Exhibit P1 before effecting promotion to the post of Assistant Plant Engineer (APE) from the seniority list of Technician-cum-Fitter Grade-A.”
## 2. The petitioner was appointed as Technician-cum-Fitter Grade-
C in the year 1990. He claims that he was entitled to be promoted as Technician-cum-Fitter Grade-B and Grade-A respectively in 1994 and 1998, but was so promoted only in 2010 and 2014. He further contends that he was entitled to be promoted as Assistant Plant Engineer in the year 2012 on completion of 7 years of service in the post of Technician-cumFitter Grade-A. Challenge is, therefore, raised against Exhibit
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P10 order issued by the respondents rejecting the petitioner's claim on the ground that the promotion of workmen in the company is made to vacancies on the criterion of merit cum seniority and the petitioner was overlooked for promotion only due to non-compliance with the eligibility criteria of required attendance and performance. It is further stated that in terms of the memorandum of settlement in force, the petitioner had been granted higher pay scale applicable to Technician-cumFitter Grade-B w.e.f. 12.11.1998 on completion of 8 years of Technician-cum-Fitter Grade-A w.e.f. 12.11.2002. He is drawing the pay applicable to Assistant Plant Engineer in the scale 23675-49850/-.
- 3.Heard the learned counsel for the petitioner and learned standing counsel for the respondents.
- 4.The learned counsel for the petitioner relies on a decision of the Gujarat High Court in **Todarmal Jiva Jadav v. Kandla Port Trust & Anr** . [1992 (2) SLR] to contend that departure from previous practice to deny promotion is violative of Article 14 and 16 of the Constitution of India. He also drew my
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attention to the decision of the Apex Court in **Ramesh Kumar v. Union of India** [AIR 2015 SC 2904] to contend that the principal of 'no work no pay' would not be attracted where respondents were at fault in not considering the employee for promotion and not allowing him to work in the higher post.
- 5.The learned standing counsel for the respondents would contend that the petitioner has been given all the benefits he was entitled to on the basis of the recruitment rules and the agreements in force and is presently drawing the pay applicable to Assistant Plant Engineer. The actual promotions were delayed only on account of his unauthorised absence from service and his unsatisfactory performance during the periods in question which have to be taken into account going by the applicable rules.
- 6.I have considered the contentions advanced on either side. It is clear from a perusal of Exhibit R1(A) guidelines for promotion that the cadre promotions of workmen are vacancy based and are to be carried out on the basis of performance appraisal and attendance during the relevant periods. In
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Exhibit P2 reply dated 17.02.2015 itself, the respondents have informed the petitioner of the shortfall in his performance appraisal as well as attendance. It is stated that the shortfalls have been repeatedly communicated to the petitioner. The reasons for the delay in promoting him have also been clearly set out in the said reply. Apart from raising certain allegations against the respondents, the petitioner has not substantiated any case of mala fide or extraneous consideration as against the respondents.
7.In the above view of the matter, this Court would not be justified, in exercise of jurisdiction under Article 226 of the Constitution of India to delve into the questions of manner of assessment of merit of the candidates in a selection conducted for promotion. Exhibit R1(A) guidelines are not under challenge. In the circumstances, I am of the opinion that this Court cannot conduct an in depth examination of the assessment conducted by the employer for the purpose of promotion. Moreover, the petitioner has been granted all time bound higher grades eligible and is now placed in the scale of pay of Assistant Plant Engineer. I am not convinced that any
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illegibility or arbitrary exercise of power vitiates the orders of the respondents impugned herein.
The writ petition, therefore, fails and is accordingly dismissed.
sd/- **Anu Sivaraman, Judge**
sj
