Kerala High Court
Vineshmon.K.P vs The Transformers And Electricals ... on 29 November, 2019
Author: P.V.Asha
Bench: P.V.Asha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE SMT. JUSTICE P.V.ASHA
FRIDAY, THE 29TH DAY OF NOVEMBER 2019 / 8TH AGRAHAYANA, 1941
WP(C).No.37490 OF 2017(I)
PETITIONERS:
1 VINESHMON.K.P
JUNIOR ENGINEER,
EMPLOYEE NO: 3763,
PLATE WORK SHOP,
TRANSFORMERS AND ELECTRICALS KERALA LIMITED,
ANGAMALY SOUTH, ERNAKULAM DISTRICT - 683 573.
2 VIKAS V.S
JUNIOR ENGINEER,
EMPLOYEE NO: 3767, IT & QA,
TRANSFORMERS AND ELECTRICALS KERALA LIMITED,
ANGAMALY SOUTH, ERNAKULAM DISTRICT - 683 573.
3 VIJAYAN S
JUNIOR ENGINEER,
EMPLOYEE NO: 3808, STORE,
TRANSFORMERS AND ELECTRICALS KERALA LIMITED,
ANGAMALY SOUTH, ERNAKULAM DISTRICT - 683 573.
4 RAMESAN KARIYIL
JUNIOR ENGINEER,
EMPLOYEE NO: 3809, PLATE WORK SHOP,
TRANSFORMERS AND ELECTRICALS KERALA LIMITED,
ANGAMALY SOUTH, ERNAKULAM DISTRICT - 683 573.
BY ADVS.
SRI.M.V.BOSE
SRI.VINOD MADHAVAN
RESPONDENTS:
1 THE TRANSFORMERS AND ELECTRICALS KERALA LIMITED
ANGAMALY SOUTH, ERNAKULAM DISTRICT - 683 573
REPRESENTED BY ITS MANAGING DIRECTOR.
2 THE JOINT GENERAL MANAGER (HR)
TRANSFORMERS AND ELECTRICALS KERALA LIMITED
ANGAMALY SOUTH, ERNAKULAM DISTRICT - 683 573.
WP(C).No.37490 OF 2017(I)
2
3 SIVAPRASAD M
EMPLOYEE NO: 3811,
ASSISTANT ENGINEER(PROMOTED ON 01/07/2017)
PLATE WORK SHOP,
TRANSFORMERS AND ELECTRICALS KERALA LIMITED
ANGAMALY SOUTH, ERNAKULAM DISTRICT - 683 573.
BY ADVS.
BY ADV. SMT.MARIAM MATHAI
BY ADV. SRI.K.BALACHANDRAN MANGALATH
BY ADV. SRI.BIJOY CHANDRAN
BY ADV. SRI.RAJESH NAIR
BY ADV. SRI.SAJI VARGHESE
BY ADV. SRI.S.S.SRINATH
BY ADV. SRI.K.BALACHANDRAN (MANGALATH)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
08.11.2019, THE COURT ON 29.11.2019 DELIVERED THE FOLLOWING:
WP(C).No.37490 OF 2017(I)
3
P.V.ASHA J.
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W.P.(C).No.37490 of 2017
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Dated this the 29th day of November, 2019
J U D G M E N T
Petitioners, who are Junior Engineers under the 1 st respondent-TELK, have filed this writ petition challenging the promotion granted to the 3 rd respondent as Assistant Engineer. The promotion to the post of Assistant Engineers is governed by Ext.P1 promotion policy issued as per proceedings dated 15.12.2011. The contention of the petitioners is that when the criteria for promotion to the post of Assistant Engineer is seniority cum merit, they are not liable to be superseded by the 3rd respondent who is junior to them as once they acquired the required minimum marks of 60% and above towards merit in accordance with Clause 6.11 of the promotion policy, Ext P1. The 3rd respondent, who is rank No.10 in Ext.P2 seniority list of Junior Engineers was granted promotion as per Ext.P4 order on 01.07.2017, overlooking the petitioners, who are at Sl. No. 2,4,7 and 8. It is stated that petitioners 1 and 2 had been working as Junior Engineers from 01.07.2009 whereas the 3 rd WP(C).No.37490 OF 2017(I) 4 respondent's promotion was only on 23.12.2010 along with petitioners 3 and 4, who are having more service in the post of Operator Gr.III-the feeder category to that post. Petitioners claim that promotion should have been made in accordance with seniority from among those who acquired 60% and more marks and therefore the promotion granted to the 3 rd respondent in preference to them, is illegal and contrary to the promotion policy.
2. In the amended the writ petition, they alleged that the provisions contained in Clause 6.8, 6.12, 6.13, 6.14, 6.16 and 6.23 of Ext.P1 are inconsistent, defeating the settled law laid down by the Apex Court in B.V.Sivaiah and others v. K.Addanki Babu and others [1998 (6) SCC 720] and Hari Govind Yadav v. Rewa Sidhi Gramin Bank and others [(2006)6 SCC 145]; it is a departure from the procedure followed in other Public Sector Undertakings and it infringes their fundamental rights and therefore those provisions are to be set aside. Their further contention is that the management has manipulated the records in order to grant more marks to petitioner in order to promote him and the promotion is hence vitiated by malafides.
3. By Ext.P3 notification issued on 01.06.2017 the 1 st respondent notified 2 vacancies of Assistant Engineers in E2 WP(C).No.37490 OF 2017(I) 5 Grade, to be filled up by promotion. Seeing that the 3 rd respondent, who is junior to them was promoted they collected the details as to promotion submitting application under the Right to Information Act; they were informed that the percentage of marks for seniority is only 10% and 90% is for merit. Pointing out Ext.P8 order by which the number of posts of Assistant Engineers is enhanced under the 1 st respondent from 11 to 16, they submit that further promotions in this manner should be restrained.
4. Respondents have filed separate counter affidavits and additional counter affidavits to the amended writ petition. According to the respondents 1 and 2 even though the criteria for promotion is styled as seniority cum merit, in effect promotion is made on the basis of merit. It is stated that as per Clause 6.8 of the promotion policy, promotions are made from the rank list prepared on the basis of the aggregate marks obtained by the employee in the selection process, as provided in clause 6.13. The 3 rd respondent has got an aggregate score of 80.50 whereas the petitioners 1 to 4 scored only 76.8, 79.85, 72 and 68.58 respectively; as the number of vacancies was only 2, rank Nos.1 and 2 were appointed. Petitioners were ranked 6, 3, 13 and 17 respectively. WP(C).No.37490 OF 2017(I) 6 Furnishing the marks under each head, they stated that the 3 rd respondent who was rank no.1, was granted promotion on the basis of merit in accordance with the provisions in the promotion policy, each of which has to be read together and therefore, there is no illegality or malafides as alleged.
5. In the reply affidavit petitioners have produced Ext.P9 appraisal records in respect of the 3 rd respondent, pointing out that manipulations are carried out in it by erasions, use of whiteners, overwritings, etc., in almost all the pages in order to enhance his marks to see that he is the highest scorer. Petitioners claim that their marks were reduced in the appraisal reports Exts.P12 to P15, in order to grant promotion to the 3 rd respondent. It was alleged that in the year 2016, the 3rd respondent and one Ms. Preethi were awarded 9 marks for potential; and Ms. Preethi was promoted as she was highest scorer. Petitioners claim that her score in Ext.P10 appraisal reports was 53.375 marks. According to the petitioners, the 3rd respondent, who was having only less than 53.375 marks in 2016, is not therefore eligible for a higher score in the next year. But in Ext.P9 appraisal reports exaggerated marks are given, which would show that the 3 rd respondent was given 61.775% marks in 2015-16. Therefore, WP(C).No.37490 OF 2017(I) 7 petitioners contended that if the marks in Ext.P9 are correct, the 3rd respondent should have been granted promotion in the previous selection in preference to Smt. Preethi. They also pointed out the difference in the marks furnished in the counter affidavit and those seen in the appraisal reports and alleged malafides on the part of the official who had sworn to the counter affidavit. It was alleged that the performance appraisal forms of the 3 rd respondent for the last 4 years were manipulated to make him the highest scorer.
6. Denying the allegations the respondents 1 and 2 have filed an additional counter affidavit explaining that promotion as per Ext.P1 is a three tyre process. As per Clause 6.2, annual performance report for the regular employee is prepared by the controlling officer; in the 2 nd stage it would be reviewed by the reviewing officer who is free to modify it on valid reasons; in the third stage thereafter, there is a normalization process by a committee consisting of Head of HR, MD and GM and the Head of the Department. It is stated that total marks are arrived at only after all these processes based on which promotion is granted. It is stated that in 2016, the marks of Ms. Preethi was increased from 53.375 to 59.85 after normalization process and the marks of 3 rd WP(C).No.37490 OF 2017(I) 8 respondent, who obtained 61.775 marks in the performance appraisal, was reduced to 58.8 in the normalisation process. It is stated that the total marks of Ms. Preethi was thus 79.85 and that of 3 rd respondent was 73.8. According to them corrections if any, are only with respect to calculation mistakes, which are done in all reports. It is stated that the 3rd respondent has been consistently scoring high marks during the last 3 years. It is stated that reviewing officer is competent to modify marks stating reasons.
7. In the counter affidavit filed by the 3 rd respondent, he stated that he has passed ITI, he underwent a course of training in the trade of welder at the Industrial Training Centre Tirur during 1988-89. He was adjudged as the best craftsman in that trade, based on which Ext.R3(a) certificate was issued. It is stated that he passed Diploma in Mechanical Engineering and he got the promotion as a result of his hard work and sincerity. It is also pointed out that he was deputed for important and prestigious projects considering his eligibility and performance. He was deputed as Supervisor for strengthening of 270 MVA Transformer tank lying at MW Super Critical Project Krishnapuram, as per Ext.R3(b) order dated 20.11.2013 and the work of his team was appreciated, as WP(C).No.37490 OF 2017(I) 9 per Ext.R3(c) certificate issued on 31.12.2014. It is stated that Company entrusted him various projects in which he was successful and the respondent company has given due recognition to his ability and expertise; he was given additional charge of Technical Assistant to Chairman as per Ext.R3(d), as a result of his dedicated work. According to him the objectives behind Ext.P1 promotion policy and the circumstances under which the policy was formulated for the first respondent Company, which is a joint venture of Government of Kerala and NTPC limited stand on a different footing as provided in the first paragraph of Ext.P1 and as evident from the objectives given in clause 3 of Ext.P1. Regarding the 'annual appraisal system' it is stated that there is a three tyre mechanism with controlling officer, at the 1st stage the reviewing officer at the 2 nd stage and the final stage of normalization process by the expert committee constituted with HR Head, MD as chairman and GM and Head of Department concerned as member. It is stated that under clause 6.3.1 the authority to interpret, modify and administer the policy vest with the Managing Director of the company whose decision is final and binding. It is his further contention that after participating in the selection process and after WP(C).No.37490 OF 2017(I) 10 becoming unsuccessful in the same, petitioners are estopped from challenging the selection as well as the provisions contained in the promotion policy.
8. In the additional counter affidavit filed by the second respondent also it is stated that promotion policy has to be read as a whole to deduce the intention and meaning of the policy instead of reading a few words in isolation. According to them promotions are made in accordance with the provisions contained in the promotion policy which has been framed by the Board of Directors of the Company after due deliberations and it has application only to the respondent Company and it is not statutory in nature.
9. The 3rd respondent in the counter affidavit in the amended writ petition stated that the TELK being a joint venture of Government of Kerala and NTPC Limited and the Managing Director himself being a nominee of the NTPC Limited and Chairman by the Government of Kerala, there is no room at all for any such influence as alleged by the petitioners. It is also stated that Ext.P1 promotion policy was in force since the year 2011 and all these years promotions were made giving due importance to merit. It is also pointed out that the petitioners also participated in the selection on the WP(C).No.37490 OF 2017(I) 11 basis of the very same promotion policy.
10. Learned counsel for the petitioner relied on the judgments of the Apex Court in B.V.Sivaiah and others v. K.Addanki Babu and others :(1998) 6 SCC 720 and Harigovind Yadav v. Rewa Sidhi Gramin Bank And Others : 2006 (6) SCC 145 and argued that when the criteria for promotion is seniority cum merit, promotions should be made on the basis of seniority provided the candidates possess the requisite standard of merit.
11. Learned counsel for the 3 rd respondent relying on the judgment of K.Samantaray v. National Insurance Co. Ltd [(2004) 9 SCC 286] argued that the judgment in B.V. Sivaiah's case would not be applicable where promotion is governed by promotion policy. The learned counsel also relied on the judgment in Maharashtra Public Service Commission v. Sandeep Shriram Warade and Others [(2019) 6 SCC 362] and argued that it is for the employer to decide how the promotions are to be made. Relying on the judgment in Secy.(Health) Deptt. of Health v. Dr.Anita Puri and Ors [(1996)6 SCC 282] : [JT 1996 (8) S.C. 130], it was argued that in the absence of any statutory rules, the authority to determine the manner in which appointment is to be made is on the employer for whom WP(C).No.37490 OF 2017(I) 12 selection is conducted . It was argued that petitioners are estopped from challenging the provisions in promotion policy after participating in the selection, in the light of the judgments in Dhananjay Malik v. State of Uttaranchal [2008 (2) KLT 969 (SC)]; Chandigarh Administration and Another v. Jasmine Kaur and Others [(2014) 10 SCC 521] and Madras Institute of Development Studies and Another v. K.Sivasubramaniyan and Others [(2016) 1 SCC 454].
12. I heard Sri. Vinod Madhavan, the learned Counsel for the petitioners, Sri. Saji Varghese, the learned Standing Counsel for the respondents 1 and 2 and Sri. Bijoy Chandran the learned Counsel for the 3rd respondent .
13. In view of the contentions advanced by both sides, it is necessary to have a look at the promotion policy. The promotion policy starts saying:
"The matter regarding the revision of Promotion Policy for TELK Executives has been in consideration for last many years. In order to give impetus to its early finalization and with a view to bring the best HR Practice in the industry, the Management had appointed HR consultants and leading management practitioners for providing a planned Career growth for TELK executives. Multiple studies and consultations were made with stakeholders including all the executive associations, based on which Rajagiri Centre for Business Studies submitted the Promotion policy, bringing out Best practices in the area of talent engagement and planned career growth aligned with the needs of the Organization. The Statement of Company Policy Regarding Promotion of TELK Executives was also submitted to JV partner NTPC Limited for vetting the policy and providing inputs and value additions, in line with the decision of the WP(C).No.37490 OF 2017(I) 13 Board. Finally, in the 288 th Meeting of the Board of Directors, held on 06.12.2011, the said policy was approved by the Board."
14. Clause 2.0 of Chapter 2 of the promotion policy provides for the grades and scale of pay of the posts to which the policy is applicable. As per this the Junior Engineer is in the Grade of E1-A and Assistant Engineer is in E2 Grade. Chapter 3 provides for the objective of the policy document. Chapter 4 provides for General Policy Guidelines. Clause 4.4 in that Chapter provides for the eligibility period and criteria for promotion of executives. Seniority-cum-merit is the criteria for promotion from E1A to E2 and eligibility period is 4 years. Chapter 6 provides for the Appraisal System which is the basis for assessment of merit and suitability. Clause 6.0 to 6.26 provides for the manner of consideration of appraisal reports for the purpose of promotion. Clause 6.7 provides that promotion orders should be issued normally on the 1st day of July every year for all categories and grades of executives. Clause 6.8 provides that promotions are to be effected on the basis of ranking based on the aggregate marks obtained by the employees in the selection process. It also provides for apportionment of total marks of 100 for various categories. Merit based promotion is provided for the categories of AGM and above, Senior Manager and Manager. WP(C).No.37490 OF 2017(I) 14 Seniority cum merit is provided for the categories of Assistant Manager, Engineer/Officer, Assistant Engineer and Junior Engineer. For Assistant Engineers as well as Junior Engineers 10 marks are allocated for length of service, qualification and potential and 70 marks for performance. Clause 6.9 provides that performance would be rated on the basis of eligibility criteria which includes personal records and performance appraisals and suitability criteria which involve potential. Under clause 6.10 potential is to be assessed on the basis of assessments by the DPC and/or personal interview by Selection Committee. Clause 6.11 which the petitioners claim as the only requirement for promotion, reads as follows:
"6.11. The employee would have to secure minimum 60% marks in each criterion (except qualification and length of service) to be eligible for promotion.
15. Clause 6.12 provides for the marks for length of service @ 1 mark at the end of first year; 3 marks on completion of two years; 6 marks on completion of 3 rd year and 10 marks on completion of 4 th year and more after eligibility. Clause 6.13 and 6.14 read as follows:
"6.13. The marks obtained by employees on these factors on which they are to be judged will be aggregated after being adjusted in the manner described above and the employees will be empanelled in the final merit list in the order of aggregate marks.
WP(C).No.37490 OF 2017(I) 15 6.14. The seniority of candidates promoted/selected shall be according to the ranking given by the Promotion Committee and in cases where there are more candidates having similar marks, seniority the matter shall be left to a review committee."
16. Clause 6.16 provides for the marks to be awarded for qualification. Clause 6.23 reads as follows:
" Promotion will be made from the merit list strictly in the order of merit to the extent the vacancies are identified in the respective higher post."
17. From Clause 6.8, 6.13, 6.14 and 6.23 it is seen that promotions are to be made on the basis of the aggregate marks secured by the candidates under different heads and seniority would not have any relevance except when merit is equal. Though different criteria viz., seniority-cum-merit and merit cum seniority are provided for different categories of posts, the aforesaid provisions do not provide even for those who acquired 60% marks as per Clause 6.11 would be given promotion based on seniority.
18. As argued by Sri. Vinod, the Apex Court in B.V.Sivaiah's case (supra) held that once the minimum necessary merit requisite for efficiency of administration is acquired, the senior even if he is less meritorious shall have priority and a comparative assessment of merit is not required for promotion. It was further held that in order to assess the minimum necessary merit competent authority can lay WP(C).No.37490 OF 2017(I) 16 down the minimum standard and prescribe the mode of assessment of merit and such assessment can be made by assigning marks on the basis of appraisal of performance on the basis of service record and interview. In that case it was found that selection was made only from among the eligible officers who secured the highest marks. The Apex Court upheld the decision of the High Court which found that the selection made on the basis of the highest marks was contrary to the principle of seniority cum merit.
19. In that judgment the Apex Court was considering a circular, which provided under clause 2.9 that candidates who have secured less than 40% marks in interview will not be considered for promotion and their names will not be included in the final merit list. It was further provided that the list of successful candidates in the order of total marks obtained by them, will be placed by the Staff Selection Committee before the Board for appointment or promotion. Considering these provisions, it was held that the selection made on the basis of the total marks was not the criterion in the promotion policy and it was not in consonance with the principle of seniority-cum-merit provided in the statutory rules made under the Regional Rural Banks Act. It was held WP(C).No.37490 OF 2017(I) 17 that once the minimum standard was acquired, promotion has to be made on the basis of seniority. The dictum laid down in Sivaiah's case (supra) was reiterated in the judgment in Harigovind Yadav's case(supra).
20. But in the judgment in K.Samantaray's case (supra), relied on by Sri. Bijoy, the learned Counsel for the 3 rd respondent, the Apex Court found that in B.V.Sivaiah's case promotions were governed by the Regional Rural Banks (Appointment and Promotion of Officers and other Employees) Rules, 1988 made in exercise of the powers conferred on the Central Government by Section 29 read with Section 17 of the RRB Act, 1976, whereas in that case promotion was governed by the promotion policy, as in the case of promotions under the 1st respondent. The statutory rules provided that criteria for promotion shall be seniority cum merit. Procedure for such promotions are not seen provided in the rules. The guidelines issued by certain banks giving more weightage to merit even after acquiring prescribed standard were held contrary to rules. Pointing out the difference in the interpretation of the provisions governed by the statutes as well as promotion policies, the Apex Court has in K.Samantaray's case (supra) distinguished the proposition. After referring to the WP(C).No.37490 OF 2017(I) 18 relevant provisions in the promotion policy, which were applicable in that case which provided for promotion on the basis of seniority-cum-merit, it was held that while laying down the promotion policy or rules for promotions, it is always open to the employer to specify the area or parameter of weightage to be given in respect of the merit and seniority. The dictum laid down in B.V.Sivaiah's case (supra) was distinguished on the ground that the statutory rules governed the field. At the same time, it was found that in the absence of statutory rule operating in that case, the employer is free to stipulate their own criteria for adjudging claims on the principle of seniority-cum-merit giving primacy to merit as well, depending upon the class, category and nature of posts in the hierarchy of administration. Paragraph 11 of the judgment reads as follows:
"11. While laying down the promotion policy or rule, it is always open to the employer to specify the area and parameter of weightage to be given in respect of merit and seniority separately so long as policy is not colourable exercise of power, nor has the effect of violating any statutory scope of interference and other relatable matters. The decision in B.V.Sivaiah's case is clearly distinguishable on facts and in law. That was a case where statutory rules governed the field. This Court, inter alia, held that fixing terms which are at variance with the statutory rules is impermissible. In the case at hand, prior to the formulation of policy in February 1990, there were no codified prescriptions. It was the stand of the respondent employer that prior to the formulation of the policy, certain guidelines existed and the WP(C).No.37490 OF 2017(I) 19 objectives of the policy were to rationalize and codify the existing guidelines relating to promotions within officers' cadre. There is no statutory rule operating. It is for the employer to stipulate the criteria for promotion, the same pertaining really to the area of policy-making. It was, therefore, permissible for the respondent to have their own criteria for adjudging claims on the principle of seniority-cum-merit giving primacy to merit as well, depending upon the class, category and nature of posts in the hierarchy of administration and the requirements of efficiency for such posts."
21. It is also relevant to note that in the judgment in Hargovind Yadav's case (supra), the Apex Court while dealing with promotions made in a Gramin Bank reiterated the dictum laid down in B.V.Sivaiah's case (supra) distinguishing the judgment in Samantray's case (supra) in paragraph 25, as follows:
"25.xxx But in that case promotions were not governed by any statutory rules, but by a promotion policy. The above observations made with reference to such a policy, which wholly occupied the field insofar as promotion is concerned, are not relevant where the statutory rules require promotion by seniority-cum-merit."
22. In the present case admittedly no statute governs the conditions of service of the employees or the executives of the first respondent and admittedly the promotions are governed by Ext.P1 promotion policy. On a scanning of the entire provisions in Ext.P1 it is evident that the maximum marks allotted for seniority is 10 which is admissible to anybody having 4 years in the feeder category. Thus it is seen that seniority does not have any relevance for promotion WP(C).No.37490 OF 2017(I) 20 except when merit is equal. When the promotion policy itself provides for the detailed procedure to be followed for making promotions, those provisions are to be followed. Therefore the dictum laid down in B.V.Sivaiah's case (supra) or Harigovind Yadav's case (supra) would not apply in the present case whereas the dictum in K.Samantaray's case (supra) would apply.
23. Therefore the next question to be determined is whether the provisions contained in Clause 6.8, 6.12, 6.13,6.14, 6.16 and 6.23 are liable to be interfered with on the ground that the same is contrary to the concept of seniority-cum-merit as explained in B.V.Sivaiah's case (supra). In B.V.Sivaiah's case (supra) the Apex Court was considering the promotions governed by rules framed under the provisions in Regional Rural Bank Act which provided for seniority cum merit as the criteria. It cannot be said that seniority-cum-merit in Ext.P1 should be as explained by Apex Court in that judgment when the intention of the promotion policy as discernible from its various provisions is to grant promotion on the basis of aggregate marks and not to promote those with minimum merit on the basis of seniority. The objectives behind laying down the promotion policy Ext.P1 is available in chapter 3. Clause 3.2 which is relevant reads as WP(C).No.37490 OF 2017(I) 21 follows:
" In order to facilitate the fulfillment of the growth expectations, TELK will strive to create and sustain an environment conducive to efficient and effective functioning of the executives in their roles and responsibilities and to provide the necessary scope and facilities for development of managerial skills and capabilities through training, job rotation, opportunity to serve in the field, job enlargement and job enrichment. Executives are expected to avail fully of the developmental opportunities, as mere reliance on length of service may not be sufficient to meet fully their growth aspirations."
24. Clause 3.3 provides for the following 6 objectives:
"To motivate and enthuse executives for better and more effective performance by rewarding them promotion to positions of higher responsibility commensurate with merit and ability and contribution towards the achievement of organizational goals and objectives.
To lay down clear and unambiguous principles to regulate promotion of executives to available positions consistent with the requirement of the company. This is to ensure upward mobility of TELK employees To ensure uniformity, consistency, and fairness in the promotion of Company executives as various disciplines, projects and establishments of the company.
To communicate to the executives the requirements of performance, merit and other conditions prerequisite for promotions and the events and circumstances which might disqualify them from being promoted.
To align employee mobility with organizational requirements To enhance employee morale."
25. As rightly pointed out by Sri. Bijoy, the authority to determine the manner in which and the method by which appointment is to be made including the qualification required for appointment to each post in an establishment, vests with WP(C).No.37490 OF 2017(I) 22 the employer, who is well versed with its requirements, as held by the Apex Court in Maharashtra Public Service Commission v. Sandeep Shriram Warade and Others [(2019) 6 SCC 362]. It is not for this Court to decide in which manner the 1st respondent has to make promotions.
26. The petitioners have not brought to my notice any rule relating to promotions which are made applicable to all Public Sector Undertakings. In the absence of any such rule the contentions against the impugned provisions on the ground of deviation from the procedure followed in other PSUs is unsustainable.
27. The next contention to be examined is relating to the alleged manipulations in appraisal reports. Corrections/erasions are seen in the appraisal reports of petitioners as well as 3 rd respondent and in that of Ms. Preethi. The allegation of the petitioners is that the score of the 3rd respondent is shown exaggerated than what was shown in the last year and he would have scored less than that of Ms. Preethi who scored 53.735. The version of 1 st and 2nd respondents is that petitioners have not disclosed the marks after normalization process as provided in Clause 6.2 of Ext.P1. Clause 6.2 provides that the Annual Appraisal Report WP(C).No.37490 OF 2017(I) 23 (APR) prepared by controlling officer would be reviewed by an executive above the grade to which promotion is to be considered; in case the rating by controlling Officer is modified by the reviewing Officer, the reasons thereof may be recorded and the rating given by the reviewing officer shall be taken for further consideration. It provides that on receipt of the APRs the Head of the Department shall arrange for normalization process with Head of HR as Member Convener, MD as Chairman and GM & Head of Department concerned as member. According to the respondents Ms. Preethi had scored more marks than 3rd respondent after normalization process and that the petitioners have not produced the marks after normalization procedure as provided in Clause 6.2. Petitioners have not impleaded anybody who is alleged to have manipulated the score of 3rd respondent as well as that of the petitioners. As erasions are seen in all the reports, this Court is not expected to conduct a rowing enquiry into it. The 3 rd respondent has in his counter affidavit explained the recognition he gained towards his expertise and dedication in work based on which he has carried out work in different projects. Admittedly he was having higher marks in the last selection itself.
WP(C).No.37490 OF 2017(I) 24
28. It is also relevant in this context to note that the promotion policy Ext.P1 has been in existence from December 2011 onwards. Petitioners have chosen to challenge the impugned provisions after they found themselves unsuccessful in the selection process, for which they are estopped in the light of the judgments of the Apex Court in Dhananjay Malik's case (supra), Jasmine Kaur's case (supra), and K.Sivasubramaniyan's case (supra), D.Sarojakumari v. R. Helen Thilakom & others [(2017) 9 SCC 478], etc, the petitioners are estopped from challenging the appointment of the 3 rd respondent. Just because the procedure prescribed in Ext.P1 promotion policy is different from what the Apex Court explained while considering promotions made under statutory rules or that it deviates from the procedure followed in other PSUs, it cannot be said that the impugned provisions are discriminatory or that it requires interference by this Court. No other ground is urged in the writ petition.
In the result the writ petition is dismissed.
Sd/-
P.V.ASHA, JUDGE SCS/AS/WW WP(C).No.37490 OF 2017(I) 25 APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE POLICY REGARDING PROMOTION IN TELK ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P2 TRUE COPY OF THE SENIORITY LIST IN THE POST OF JUNIOR ENGINEERS (JE) AS ON 16/11/2016.
EXHIBIT P3 TRUE COPY OF THE NOTICE DT.01/06/2017 ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE OFFICE ORDER NO: 1560 ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P5 TRUE COPY OF THE APPLICATION DATED 5/7/2017 PREFERRED BY THE 4TH PETITIONER BEFORE THE PUBLIC INFORMATION OFFICER.
EXHIBIT P6 TRUE COPY OF THE INFORMATION DATED 3/8/2017 GIVEN BY THE PUBLIC INFORMATION OFFICER TO THE 4TH PETITIONER.
EXHIBIT P7 TRUE COPY OF THE APPEAL DT.13/9/2017 PREFERRED BY THE 4TH PETITIONER BEFORE THE APPELLATE AUTHORITY UNDER THE RIGHT TO INFORMATION ACT.
EXHIBIT P8 TRUE COPY OF G.O(MS) NO.76/2017/ID DT.01/08/2017 ISSUED BY THE GOVERNMENT OF KERALA.
EXHIBIT P9 TRUE COPY OF THE PERFORMANCE APPRAISAL FORMS PERTAINING TO THE 3RD RESPONDENT FOR THE YEARS 2012 TO 2017.
EXHIBIT P10 TRUE COPY OF THE PERFORMANCE APPRAISAL WP(C).No.37490 OF 2017(I) 26 FORM PERTAINING TO MS. PREETHI, FOR THE YEAR 2012 TO 2016.
EXHIBIT P11 TRUE COPY OF THE RANK LIST OF
CANDIDATES ELIGIBLE FOR PROMOTION FROM
JUNIOR ENGINEER TO ASSISTANT ENGINEER
DURING 2016 AND 2017, WITH THE
POTENTIAL MARKS AWARDED TO EACH OF THE
EMPLOYEES.
EXHIBIT P12 TRUE COPY OF THE PERFORMANCE APPRAISAL
FORMS PERTAINING TO THE 1ST WRIT
PETITIONER, FOR THE YEARS 2013-2017.
EXHIBIT P13 TRUE COPY OF THE PERFORMANCE APPRAISAL
FORMS PERTAINING TO THE 2ND WRIT
PETITIONER, FOR THE YEARS 2013-2017.
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PERFORMANCE APPRAISAL FORMS PERTAINING
TO THE 3RD WRIT PETITIONER, FOR THE
YEARS 2013-2017.
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THE PERFORMANCE APPRAISAL FORMS,
PERTAINING TO THE 4TH WRIT PETITIONER,
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HR/126/18/652, DATED 21/07/2018,
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NO.HR/126/19/589 DATED 21ST JUNE 2019
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