Kerala High Court
K.P.Sobhana vs State Of Kerala
Author: K. Vinod Chandran
Bench: K.Vinod Chandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
MONDAY, THE 29TH DAY OF FEBRUARY 2016/10TH PHALGUNA, 1937
WP(C).No. 22202 of 2004 (R)
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PETITIONER(S):
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K.P.SOBHANA, AGED 56 YEARS,
W/O.GOUTHAMAN, ASSISTANT MARKETING, MANAGER
KERALA STATE HANDLOOM DEVELOPMENT, CORPORATION LTD.
(A GOVERNMENT OF KERALA, UNDERTAKING) CANNANORE-1.
BY ADV. SRI.P.C.SASIDHARAN
RESPONDENT(S):
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1. STATE OF KERALA, REP.BY SECRETARY,
INDUSTRIES (C) DEPARTMENT, TRIVANDRUM.
2. KERALA STATE HANDLOOM DEVELOPMENT
CORPORATION LTD., (A GOVERNMENT OF KERALA
UNDERTAKING) CANNANORE-1 REPRESENTED BY ITS
MANAGING DIRECTOR, CANNANORE-670001.
3. SASIDHARAN NAIR,
ASSISTANT MARKETING MANAGER
KERALA STATE HANDLOOM DEVELOPMENT CORPORATION, LTD.
(A GOVERNMENT OF KERALA UNDERTAKING)
REGIONAL OFFICE, ERNAKULAM.
4. P.NANU, KERALA STATE HANDLOOM
DEVELOPMENT CORPORATION LTD.
(A GOVERNMENT OF KERALA UNDERTAKING), CANNANORE-1.
R, BY ADV. SRI.E.K.NANDAKUMAR
R, BY ADV. SMT.PRIYAMANJOORAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 29-02-2016, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C).No. 22202 of 2004 (R)
APPENDIX
PETITIONERS EXHIBITS:
EXT.P1 COPY OF THE RELEVANT PAGES OF THE RANK LIST OF REGULAR
EMPLOYEES OF THE CORPORATION INCLUDING SALES
ASSISTANT.
EXT.P2 COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN OP
14977/95 DATED 24.3.03
EXT.P3 COPY OF THE ORDER ISSUED BY THE FIRST RESPONDENT DATED
21.7.04 REVERTING THE PETITIONER TO THE POST OF
SUPERINTENDENT.
EXT.P4 COPY OF THE PROCEEDINGS ISSUED BY THE MANAGING
DIRECTOR OF THE HANDLOOM DEVELOPMENT CORPORATION
NO.G2/PF/1149/04 DATED 30.7.04
EXT.P5 COPY OF THE SALARY SLIP ISSUED BY THE CORPORATION TO
THE PETITIONER DATED 7.2004
RESPONDENTS EXHBITS:
EXT.R2(A) COPY OF THE LETTER DATED 23.7.04 SUBMITTED BY THE 4TH
RESPONDENT.
// TRUE COPY //
P.A TO JUDGE
SB
K. VINOD CHANDRAN, J.
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W.P.(C) No.22202 of 2004 - R
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Dated this the 29th day of February, 2016
J U D G M E N T
The petitioner is aggrieved with the reversion effected from the post of Assistant Marketing Manager as per Ext.P3. While the petitioner was continuing as an Assistant Marketing Manager, the 4th respondent, who was suspended from service as early as on 03.04.1973, was directed to be reinstated by the Hon'ble Supreme Court with all consequential benefits, with the entitlement of back wages confined to 50%. By Ext.P3 in compliance of the directions of the Hon'ble Supreme Court, the 4th respondent is said to have been reappointed and given consequential benefits including time bound promotions, which resulted in the petitioner being reverted.
2. The petitioner contends that the petitioner had been continuing in the promoted post and the reinstatement of one another employee cannot affect her service, going by Note 4 2 W.P.(C) No.22202 of 2004 - R of Rule 56B of Chapter VII of Kerala Service Rules (K.S.R). The petitioner also has a contention that in any event, the 3rd respondent was junior to the petitioner and in fact it was he who should have been reverted.
3. The learned Counsel for the respondent Corporation however contends that the K.S.R is not applicable to them and they have framed Rules governing the service of its employees, which has been followed through out and in such circumstance, no reliance can be placed on the provisions of the K.S.R.
4. With respect to the 3rd respondent being junior to the petitioner, it is pointed out by the respondent Corporation that there was a seniority dispute pending between the petitioner and the 3rd respondent, which was agitated in an original petition, which stood disposed of by Ext.P2. The petitioner, in the said writ petition, had claimed seniority over the 3rd respondent, when the 3rd respondent was promoted to 3 W.P.(C) No.22202 of 2004 - R the post of Assistant Marketing Manager, over looking her claim. The petitioner having been promoted subsequently, the original petition was closed, leaving remedy to the petitioner to agitate the matter appropriately. The petitioner did not do so and hence there can be no claim of seniority over the 3rd respondent.
5. The petitioner has specifically averred in the writ petition that the K.S.R is applicable. The respondent is silent insofar as the applicability of the K.S.R, in the first counter affidavit filed. However, subsequently an additional affidavit was filed on 28.09.2004. The statements in the said affidavit are to the effect that the Corporation has issued Administrative Order to follow the K.S.R, only in respect of matters, where the service Rules framed by the Corporation are silent.
6. It is further averred that rules regarding the method of appointment, qualifications and scale of pay etc., were framed by the Corporation and submitted to the Government for approval in 1992. Pending approval, it is 4 W.P.(C) No.22202 of 2004 - R submitted that the rules have been followed. In 1996, it is stated that the Government had approved part of the rules and the balance is pending approval. It is also submitted that since 1994 it is based on the revised rules that the appointments and promotions are being conducted. Neither the framed rules nor the provisions relied on by the respondent Corporation are placed on record.
7. This Court finds it difficult to accept the contention of the respondents, that the K.S.R is not applicable, especially on the admitted position that the K.S.R has been made applicable except were rules are otherwise framed. No rules having been produced or specifically relied on it has to be presumed that the K.S.R is applicable. Even otherwise it is also not clear as to how the respondent Corporation on the basis of the rules resist the claim of the petitioner for continuance in her promoted post. Another employee, who had been illegally terminated had been directed to be reappointed in a post, from which he was 5 W.P.(C) No.22202 of 2004 - R terminated long back. That employee, the 5th respondent was also directed to be granted all consequential benefits. But this cannot be at the expense of another employee, who was validly continued in employment and granted regular promotions to substantive vacancies.
8. In such circumstance Note 4 of Rule 56B of Chapter VII K.S.R assumes significance and is extracted hereunder:-
A permanent post vacated by the dismissal, removal,compulsory retirement or reduction of a Government Servants to a lower service, grade or post or to a lower time-scale should not be filled substantively until the expiry of the period of one year from the date of such dismissal, removal, compulsory retirement or reduction, as the case may be. Where on the expiry of the period of one year, the permanent post is filled and the original incumbent of the post is reinstated thereafter, he should be accommodated against any post which may be substantively vacant in the grade to which his previous substantive post belonged. If there is no such vacant post, he should be accommodated against a supernumerary post which should be created in this grade with proper sanction and with the stipulation that it would be terminated on the occurrence of the first substantive vacancy in that grade.6
W.P.(C) No.22202 of 2004 - R
9. Hence when a person, who has been sent out of service, is reappointed after one year then, it cannot unsettle the settled position of others, who have been continued validly. Herein the 4th respondent was sent out of service long back in 1973 and reinstated in service in 2004. The reinstatement was directed by the Hon'ble Supreme Court obviously for the reason that the termination was illegal. Such an order cannot at all unsettle the position of the other employees continuance in the posts to which they were validly appointed or promoted. In such circumstance, going by the above provision,the respondent Corporation ought to have created a supernumerary post and continued the 4th respondent in that post, till a regular vacancy arose in that post.
10. The petitioner's claim to continue in the post of Assistant Marketing Manager having been accepted by this Court. What remains is the consideration of the benefits due to the petitioner on the basis of such orders. Herein, the history of 7 W.P.(C) No.22202 of 2004 - R the litigation is important. When the petitioner was threatened with reversion as per Ext.P3 order dated 21.07.2004, she had immediately approached this Court by the above writ petition and on 27.07.2004, there was an interim order passed by this Court staying reversion of the petitioner for a period of three weeks. The 2nd respondent entered appearance and contended that the petitioner had already been reverted. Hence on 18.08.2004, this Court had passed an order, directing the 2nd respondent to file an affidavit, furnishing details of date of receipt of the order dated 27.07.2004. The respondent sought to substantiate their stand by an affidavit dated 23.08.2004 contending that on 22.07.2004, itself, the 4th respondent joined the post and the petitioner stood reverted. In such circumstance, this Court passed a further interim order dated, 25.08.2004, which is in the following lines:-
Implementation of Ext.P4 will be subject to the result of the writ petition. In case the petitioner succeeds in the writ petition, she shall be entitled to the salary attached to the post of Assistant Marketing Manager with interest at the rate of 8%.8
W.P.(C) No.22202 of 2004 - R
11. The writ petition having been allowed, the petitioner would be entitled to the entire benefits due to her in the post of Assistant Marketing Manager, considering her to be continued in that post, till her retirement. The said arrears will also have to be paid with interest @ 8%. The petitioner is said to have retired in the year 2005. Hence, the petitioner shall be paid the entire pay and allowances due to an Assistant Marketing Manager from 22.07.2004, on which date, she is said to have been reverted, with 8% interest as directed in the interim order.
The retirement benefits shall also be calculated on the basis of the last pay drawn computed in accordance with the directions herein above, the balance remaining of which shall also carry interest at the above rate.
The writ petition hence would stand allowed. No costs.
Sd/-
K. VINOD CHANDRAN,
JUDGE
SB/01/03/2016 // true copy //
P.A to Judge.