Kerala High Court
K.U.Kunju Mohammed vs The Kerala State Road Transport ... on 3 August, 1993
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
MONDAY, THE 1ST DAY OF JULY 2013/10TH ASHADHA, 1935
WP(C).No. 4144 of 2013 (P)
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PETITIONER(S):
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K.U.KUNJU MOHAMMED, AGED 62 YEARS
S/O. K.M.YOUSUF, AMBAKUDIYIL HOUSE, PANAYIKULAM P.O.
ERNAKULAM DISTRICT. (SPECIAL ASSISTANT - RETD. ON 30.4.2006,
FROM KSRTC, ALUVA DEPOT.).
BY ADV. SRI.K.P.JUSTINE (KARIPAT)
RESPONDENT(S):
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1. THE KERALA STATE ROAD TRANSPORT CORPORATION
REPRESENTED BY ITS MANAGING DIRECTOR
TRANSPORT BHAVAN, THIRUVANANTHAPURAM-695 023.
2. THE EXECUTIVE DIRECTOR (ADMINISTRATION)
KERALA STATE ROAD TRANSPORT CORPORATION
TRANSPORT BHAVAN, FORT P.O.
THIRUVANANTHAPURAM-695 023.
3. THE CHIEF LAW OFFICER
KSRTC, THIRUVANANTHAPURAM 695 023.
R1-R3 BY ADV. SRI.BABU JOSEPH KURUVATHAZHA,SC,KSRTC
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
01-07-2013, ALONG WITH WPC. 26354/2011 & CONNECTED CASES,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 4144 of 2013 (P)
APPENDIX
PETITIONERS EXHIBITS
EXT.P1 COPIES OF THE RELEVANT PAGE NOS. 2 AND 3 OF THE PENSION
BOOK.
EXT.P2 COPIES OF THE RELEVANT PAGE OF THE GRADATION LIST
EXT.P3 COPY OF THE MEMORANDUM NO.PLC6-21001/93 DATED 3.08.1993
EXT.P4 COPY OF THE MEMORANDUM NO.PL1-001518/04 DATED 18.05.2004
EXT.P5 COPY OF THE ORDER NO.PL4/000222/06 DATED 2.1.2007 ISSUED
BY THE RESPONDENT CORPORATION
EXT.P6 COPY OF THE APPENDIX XIIA.
EXT.P7 COPY OF THE ORDER NO.PL.10-6088/06 DATED 15.12.2006
EXT.P8 COPY OF THE ORDER NO.PL09043998/2012 DATED 25.10.2012
EXT.P9 JUDGMENT DATED 11.3.2010 IN WRIT APPEAL NO.1471/2007
EXT.P10 COPY OF THE JUDGMENT DATED 14.7.2009, IN WP(C)
NO.13718/2008
EXT.P11 JUDGMENT DATED 26.7.2012 IN WP(C) NO. 9543/2009
EXT.P12 COPY OF THE ABOVE JUDGMENT DATED 25.9.2007 IN MOHAMMED
ABDULLAH VS. STATE OF KERALA
EXT.P13 G.O.(P) 780/83/FIN DATED 16.12.83
EXT.P14 COPY OF THE RELEVANT PORTION OF THE G.P.RULES
EXT.P15 COPY OF THE ABOVE CIRCULAR MEMORANDUM NO.PL7/000175/2010
DATED 6.7.2010
RESPONDENTS EXHIBITS
EXT.R1(A) COPY OF CLAUSE 4 OF APPENDIX XIIA OF PART 1 OF KSR.
EXT.R1(B) COPY OF THE CLAUSES 1 TO 5 AND 28 OF ORDER NO.PLA.10-
01575/84/R.DIS. DATED 21.8.84
EXT.R1(C) COPY OF THE RELEVANT PORTION OF THE BIPARTITE AGREEMENT
DATED 2.2.1987 PERTAINING TO THE GRADE PROMOTIONS OF
CONDUCTORS, DRIVERS, L.D.CLERKS AND WORK ASSISTANTS.
EXT.R1(D) COPY OF THE GRADE PROMOTION RULES DATED 9.10.1987
INTRODUCED IN THE CORPORATION IN PURSUANCE TO EXT.R1(C)
AGREEMENT
/TRUE COPY/
P. A. TO JUDGE
Pn
C.K. ABDUL REHIM, J.
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W.P.(C). Nos. 4144 of 2013, 26354 of 2011,
21080 of 2012 & 265, 1546 of 2013
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Dated this the 1st day of July, 2013
JUDGMENT
Legal issue involved in all these cases are identical. Question is whether notional promotion based on original service seniority can be claimed on re-joining duty after availing "leave without allowance (LWA)" in cadre in which the employee was working at the time of availing such leave. WP(C) No. 4144/2013 is treated as leading case. Reference to Exhibits are made in the order in which they are produced in the said case.
2. A brief narration of facts involved in the leading case would be beneficial for deciding the issue. The petitioner therein entered service of the 1st respondent Corporation (hereinafter referred to as the 'Corporation') as L.D.Clerk in the year 1975. He availed LWA for more than 14 years and rejoined duty in the year 1997. He was promoted as U.D.Clerk on notional basis in the year 1987. After he rejoined duty, promotion was effected to the post W.P.(C). Nos. 4144 of 2013 & cont. cases -2- of Selection grade Clerk, in the year 2000 and as Special Assistant in the year 2003. He retired from service on 30.04.2006. Contention of the petitioner is that his junior in seniority in the cadre of L.D.Clerk one Mr.A.V.Chandrasekharan Nair was promoted as Senior Assistant in the year 1999, after the petitioner rejoined duty and later he was promoted as Superintendent. According to the petitioner denial of promotion to the post of Senior Assistant and Superintendent, prior to promotion of the said junior, would have been given to the petitioner. Since he had already retired from service the petitioner is seeking direction to sanction notional promotion to the above posts and consequently to refix his salary and to pay revised retiral benefits.
3. With respect to Government employees, reckoning of service benefits during the period of LWA is governed by Appendix XIIA of Part 1 of the Kerala Service Rules (KSR). Rule 4 of Appendix XIIA reads as follows;
"4. Permanent Officers and non-permanent officers who have completed probation in their entry cadre in the regular service of Government may be granted leave without allowances under these rules. W.P.(C). Nos. 4144 of 2013 & cont. cases -3- In such cases, for, and during the currency of, the period of leave, the officers shall lose all service benefits such as the earning of leave including half pay leave, pension, gratuity, increment, etc., and also promotion chances as may arise with reference to their seniority in the posts from which they proceeded on leave. They shall also lose seniority in the higher grade/grades with reference to their juniors who might get promoted to such grade/grades before they rejoin duty".
4. The above Rules will not apply to any corporations, Boards or Public Sector Undertakings, unless it is adopted. But the Corporation had framed Ext.R1(b) norms/guidelines with respect to grant of LWA. Clause 3 of Ext.R1(b) reads as follows;
"3. Permanent employees and employees who have completed probation in their entry cadre in the regular service of the Corporation will be granted leave without allowances for taking up employment outside the country as well as inside. In such cases, during the currency of the leave period, the employees shall lose all service benefits including commutation leave benefits, half pay leave benefits, increment, pension etc., and also promotion chances as may arise with reference to their seniority in the posts from which they left such employees on leave without allowances, to take up employment elsewhere shall be treated as 'DIES- NON' for all kinds of service benefits. They shall lose seniority also in the grade with reference to those who might get promoted before they rejoin duty."
5. The petitioner was granted leave without allowance by virtue of an order passed by the Corporation W.P.(C). Nos. 4144 of 2013 & cont. cases -4- (order No.D.Dis-PLCR-51964/83 dated 28.6.1983). Para 2 of the said order is extracted in the counter affidavit of the respondents which reads as follows;
"Period of this leave will not count for any service benefits including commuted leave benefits, half pay leave benefits, increment, pension etc. He will not be eligible for promotion during the period of his leave and as such he will lose his seniority and rank will be re-fixed as on the date of joining after leave. In other words, the period spent by him on leave without allowance to take up/seek employment elsewhere shall be treated as 'Dies Non' for all kinds of service benefits and he shall lose seniority in the grade with reference to those who might have got promoted before he rejoin duty"
6. One of the foremost contention is that, it is on the basis of a wrong interpretation of Rule 4 of Appendix XIIA, that he was denied of promotion. According to him, promotion to the post of Senior Assistant and Superintendent ought to have been granted based on the original seniority in the cadre of L.D.Clerk, discarding the period of LWA availed for employment abroad. But it is pertinent to note that, there is no challenge raised against validity of Rule 4 of Appendix XIIA or with respect to conditions incorporated in Ext.R1(d) proceedings of the Corporation. Learned counsel for the petitioner contended W.P.(C). Nos. 4144 of 2013 & cont. cases -5- that the loss of service seniority contemplated under Rule 4 of Appendix XII B is restricted only, "for and during the currency of the period of leave." Therefore his contention is that after rejoining duty he should have given due promotion over and above his juniors as per the seniority list in the cadre in which he was availed leave. The argument if accepted will make Rule 4 redundant. It specifically says that the officer availing leave without allowance shall loose all service benefits such as earning of leave, pension, gratuity, increment and shall also loose seniority in the higher grade/grades with reference to their juniors who might get promotion to such grade/grades before they rejoined duty. The loss of seniority in such case cannot be restored after the expiry of the currency of the period of leave. Hence at any stretch of imagination, no interpretation can be given to Rule 4 as one enabling restoration of original seniority on rejoining duty.
7. An alternative contention taken is to the effect that, even assuming that the incumbent will loose W.P.(C). Nos. 4144 of 2013 & cont. cases -6- seniority during the period of leave, no junior can be promoted after his rejoining duty, overlooking the seniority in the original cadre. This contention has to be accepted to the extent of holding that, after rejoining duty no promotion can be given to any junior working in the cadre in which the incumbent had rejoined, overlooking seniority. But there also the promotion will depend upon the question of acquiring eligibility. In the case at hand, complaint is against promotion given to immediate junior of the petitioner, to the post of Senior Assistant and Superintendent. In Ext.P8, which is the proceedings impugned in the writ petition, it is clearly enumerated that during the period of leave the Officer will loose seniority in the higher grade/grades. In Ext.R1(b) it is clearly mentioned that, leave without allowance to take up employment else where shall be treated as 'dies-non' for all kinds of service benefits. In Ext.P8 it is specifically made clear that, for getting promotion to the post of Senior Assistant an L.D.Clerk has to complete the required length of qualified service in each grade namely, L.D.Clerk W.P.(C). Nos. 4144 of 2013 & cont. cases -7- (9 years), U.D.Clerk (6 years) and Selection grade Assistant (3 years) and then Special Assistant. Therefore it is evident that promotion to the post of Senior Assistant can be made only from the cadre/grade of Special Assistant, who reaches the said grade by completing required years of service in the cadre of L.D.Clerk, U.D.Clerk and Selection grade Assistant. It is mentioned that while the petitioner was on leave his immediate junior had acquired the above grades on completing the required years of service at different level. But since the LWA period of the petitioner is not reckoned for attainment of grade, the petitioner was not qualified or eligible to be promoted as Senior Assistant or as Superintendent.
8. Learned counsel for the petitioner contended that the principle of grade promotion cannot be imported in the matter of cadre promotions and the petitioner ought to have been granted cadre promotion along with his juniors to the post of Senior Assistant and Superintendent. But it is pertinent to note that the W.P.(C). Nos. 4144 of 2013 & cont. cases -8- petitioner has no case that for effecting cadre promotion to the post of Senior Assistant, one shall not be in the post of Special Assistant. In other words, there is no case that Special Assistant is the feeder category for promotion to the post of Senior Assistant. For reaching the post of Special Assistant the petitioner has to complete the required years of service in different cadre. Since the service of the petitioner during the period of leave was not reckoned as qualifying service for granting grade promotions, it cannot be contended that the petitioner should be promoted as Senior Assistant by granting notional promotion in the lower cadres.
9. Learned counsel for the petitioner had drawn my attention to various precedents of this court to claim that persons identically situated were granted promotion on the basis of directions issued from this court. In the counter affidavit of the respondents it is categorically mentioned that, even if any such promotion has been granted, the same can only be treated as irregular promotion. It is pointed out that in various decision of the W.P.(C). Nos. 4144 of 2013 & cont. cases -9- hon'ble Supreme Court, like Ekta Shakti Foundation V. Government of NCT of Delhi (2006 (3) KLT 601(SC) and in Gursharan Singh V. New Delhi Municipal Committee and others (1996 (2) SCC 459), it is categorically held that, if an illegality or irregularity has been committed in favour of any individual or a group of individuals, others cannot invoke jurisdiction of the High Court on the basis of violation of Article 14 of the Constitution of India.
10. Since it is evident that the petitioners will loose seniority and other service benefits including eligibility for higher grade during the period of leave without allowance, there is no merit in the contention that after rejoining duty they should be given notional promotions in order to place them above the juniors who have attained requisite eligibility for grant of higher grades during the period when the petitioners were continuing on LWA.
11. Eventhough the cadre to which promotions sought for by the petitioners in the other writ petitions are different, basic principle and legal issue involved in the W.P.(C). Nos. 4144 of 2013 & cont. cases -10- other cases are identical. Hence other cases which are disposed of through this common judgment also deserve no consideration.
In the result, all these writ petitions fail and they are accordingly dismissed.
Sd/-
C.K. ABDUL REHIM, JUDGE /True copy/ P. A. to Judge Pn