IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 18TH JUNE 2009 / 28TH JYAISHTA 1931 WP(C).No. 28830 of 2008(F) -------------------------- PETITIONER: -------------- K.KRISHNAN, FIELD OFFICER, OIL PALM INDIA LTD., BHARATHEEPURAM P.O., KOLLAM DISTRICT. BY ADV. SRI.P.C.SASIDHARAN SRI.E.S.ASHRAF RESPONDENTS: ---------------- 1. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT AGRICULTURE (PU) DEPARTMENT, GOVERNMENT OF KERALA, SECRETARIAT, TRIVANDRUM. 2. THE OIL PALM INDIA LTD., REPRESENTED BY ITS MANAGING DIRECTOR, HEAD OFFICE, KOTTAYAM. 3. K.C.UNNIKRISHNAN, ASSISTANT MANAGER (ESTATE), YEROOR ESTATE, DIVISION D., BHARATHEEPURAM, KOLLAM. R1 BY GOVERNMENT PLEADER, SMT.SMITHA SUKUMAR R2 BY SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR SRI.K.JOHN MATHAI SRI.P.BENNY THOMAS SRI.ANIL D. NAIR SRI.V.J.ANAND R3 BY ADV. SRI.B.MOHANLAL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC : 28830/08 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : TRUE COPY OF THE GAZETTE NOTIFICATION ISSUED BY THE COMMISSION DATED 09.08.77. EXT.P2 : TRUE COPY OF PROCEEDINGS ISSUED BY THE 2ND RESPONDENT DATED 10.08.2000. EXT.P3 : TRUE COPY OF THE COMMUNICATION DATED 30.07.04. EXT.P4 : TRUE EXTRACT OF MINUTES OF MEETING OF THE BOARD OF DIRECTORS DATED 27.06.08. EXT.P5 : TRUE COPY OF PROCEEDINGS DATED 10.07.08. EXT.P6 : TRUE COPY OF REPRESENTATION DATED 15.07.08. EXT.P7 : TRUE COPY OF THE COMMUNICATION ISSUED UNDER THE RIGHT TO INFORMATION ACT TO SRI.C.A. RAVI. RESPONDENT'S EXHIBITS: EXT.R3(A) : TRUE COPY OF THE OFFICE ORDER DATED 10.08.00 ISSUED BY THE 2ND RESPONDENT. EXT.R3(B) : TRUE COPY OF THE ORDER DATED 17.09.07 GIVING CHARGE OF THE 3RD RESPONDENT TO THE POST OF ASSISTANT MANAGER. EXT.R3(C) : TRUE COPY OF THE ORDER DATED 03.06.08 GIVING CHARGE OF THE 3RD RESPONDENT TO THE POST OF ASISTANT MANAGER. EXT.R3(D) : TRUE COPY OF THE MINUTES OF THE BOARD OF DIRECTORS OF OIL PALM INDIA LIMITED DATED 27.06.08 GRANTING PROMOTION TO THE 3RD RESPONDENT. EXT.R3(E) : TRUE COPY OF THE PROCEEDINGS DATED 10.07.08 OF THE 2ND RESPONDENT GRANTING PROMOTION TO THE POST OF ASSISTANT MANAGER TO THE 3RD RESPONDENT. /TRUE COPY/ PA TO JUDGE S. SIRI JAGAN, J. ------------------------------------------------- W.P.(C)No. 28830 OF 2008 ------------------------------------------------- Dated this the 18th day of June, 2009 JUDGMENT The petitioner and the 3rd respondent who belong to Scheduled Caste Community, were selected through special recruitment by PSC for appointment to the Plantation Corporation of Kerala Ltd, a public sector company, of which the entire shares are held by the Government of Kerala. In the rank list prepared by the PSC the petitioner was above the 3rd respondent in rank. In the advice list also the petitioner was above the 3rd respondent. They joined the Plantation Corporation of Kerala Ltd., on the same day. While they were continuing in the service, the Plantation Corporation of Kerala Ltd., formed a subsidiary company, which is the 2nd respondent herein. Employees of the Plantation Corporation of Kerala Ltd. were given option to join the newly formed subsidiary company. Both the petitioner as well as the 3rd respondent opted to join the 2nd respondent company. Their options were accepted and they were absorbed as employees of the 2nd respondent company. While they were continuing as such, there arose a vacancy, which was reserved WPC : 28830/08 -:2:- for Scheduled Caste Community, of Assistant Manager(Estate). The qualification prescribed for appointment to that post was a degree with 7 years of service. Both the petitioner and the 3rd respondent did not have the qualification of a degree. But both had 31 years of service. By Ext.P4, the Board of Directors decided to give the 3rd respondent relaxation in qualification and pursuant thereto the 3rd respondent was appointed to the post of Assistant Manager(Estate). That order is under challenge before me. 2. The contention raised by the petitioner is that petitioner was senior to the 3rd respondent in service. When both of them had same number of years of service, in the matter of relaxation in qualification for higher posts, the 2nd respondent cannot discriminate between the two. If the 3rd respondent is eligible for relaxation, the petitioner is also equally eligible for relaxation. The petitioner being senior to the 3rd respondent, the petitioner should be preferred for appointment giving relaxation, if the 2nd respondent decides to appoint, giving relaxation in qualification, is the contention raised by the petitioner. On these contentions the petitioner seeks the following reliefs: “i. to issue a writ of certiorari quashing Exts.P4 and P5; WPC : 28830/08 -:3:- ii. To issue a writ of mandamus, order or direction directing the respondents to promote the petitioner to the post of Assistant Manager(Estate); iii. To declare that the action of the respondents in extending the benefits to the 3rd respondent and discriminating the similarly placed other persons is highly illegal, unjust and violative of Articles 14, 16 and 21 of the Constitution;” 3. Counter affidavits have been filed by respondents 2 and 3. The counsel for the 2nd respondent would contend that the 2nd respondent is unaware of the seniority position of the petitioner and the 3rd respondent in the holding company, namely, the Plantation Corporation of Kerala Ltd. When after option, they joined the 2nd respondent subsidiary company, since the 3rd respondent was senior in age, he was treated as senior and it is on that ground the 3rd respondent was given relaxation in qualification and promoted to the post of Assistant Manager(Estate). According to them, there is nothing wrong in the action of the 2nd respondent in giving relaxation to the 3rd respondent in qualification and promoting him as Assistant Manager(Estate). Both respondents 2 and 3 rely on Ext.R2(a) order dated 10.08.2000, whereby all field assistants of the 2nd respondent company were re-designated as field officers. 8 persons were so WPC : 28830/08 -:4:- re-designated as field officers. 7th is the 3rd respondent and 8th is the petitioner. Respondents 2 and 3 would contend that in Ext.R2(a), names are arranged in the order of seniority and since the petitioner has not challenged the same, he cannot now turn back and contend that he is senior to the 3rd respondent. They also rely on Ext.R2(c) and R2(d), whereby the 3rd respondent was given charge of the post of Assistant Manager(Estate) on 17.09.07 and 30.06.08. According to them that would also show that the 3rd respondent was treated as senior to the petitioner and since he had not challenged the same, he must be taken to have acquiesced in the seniority position and therefore he cannot now turn around and claim that he is senior to the 3rd respondent. 4. I have considered the rival contentions in detail. I am not at all able to countenance the contention of the 2nd respondent that since they are a separate company from the holding company they cannot be expected to know the details of service of the petitioner and the 3rd respondent in the holding company. A subsidiary company cannot claim that they were not aware of what happened in the holding company in respect of employees who opted to come WPC : 28830/08 -:5:- over to the subsidiary company on the formation of the subsidiary company. It is not disputed before me that they have been absorbed in the subsidiary company with continuity of service and benefit of the service in the holding company. That being so, the subsidiary company is expected to know all service details of all employees who have come over from the holding company to the subsidiary company by option. The 2nd respondent company cannot feign ignorance about the service details of such employees, who have come over from the holding company to the subsidiary company by option. 5. Neither the 2nd respondent nor the 3rd respondent disputes the fact that in the rank list prepared by the PSC for selection originally to the holding company and the advice list issued by the PSC, the petitioner was above the 3rd respondent in rank. That being so, respondents 2 and 3 cannot now dispute the fact that in the holding company the petitioner joined as senior to the 3rd respondent. Once option is given, for going over to the subsidiary company with all service benefits, the service put in the holding company would include seniority also. Therefore, I cannot countenance the WPC : 28830/08 -:6:- contentions of the 2nd respondent that, when the petitioner and the 3rd respondents were absorbed in the 2nd respondent company, the 3rd respondent was treated as senior to the petitioner. The fact that the petitioner had not challenged Exts.R2(a), R2(c) and R2(d) does not alter the situation in any manner. Ext.R2(a) is only a list of the field assistants, who have been re-designated as field officers. The fact that in that list the petitioner was shown below the 3rd respondent need not necessarily give rise to the conclusion that the petitioner was treated as junior to the 3rd respondent. So also, the charge arrangements need not necessarily be in the order of seniority. It depends purely on exigencies of service. It is also settled that charge arrangement would not give any preferential right with the person who is put in charge for regular promotion to that post. Further admittedly no seniority list has been published at any time. Therefore the fact that the petitioner has not challenged those documents is of no consequence for deciding the question of seniority between the petitioner and the 3rd respondent. 6. Respondents 2 and 3 could not put forward any argument to the effect that the despite the seniority of the petitioner the 3rd WPC : 28830/08 -:7:- respondent should be preferred for any specific reason. In fact all along their contention is that only because the 2nd respondent treated the 3rd respondent as senior to the petitioner the 3rd respondent was preferred to the petitioner for giving relaxation in qualification. The 2nd respondent has no case that at any time any seniority list was prepared or that at any time the petitioner was informed that he is junior to the 3rd respondent. That being so, on that ground also respondents 2 and 3 cannot allow the 3rd respondent to steal march over the petitioner in the matter of granting relaxation in qualifications for promotion. Therefore the granting of relaxation to the 3rd respondent, who is junior to the petitioner in preference to the petitioner, is clearly arbitrary and discriminatory. Although granting of relaxation in qualification is a discretion vested with the 2nd respondent, that discretion also can be tested in the anvil of Articles 14 and 16 of the Constitution of India. I have no doubt in my mind that the action of the 2nd respondent in preferring 3rd respondent to the petitioner for granting such relaxation and promotion is clearly arbitrary and discriminatory and violative of the fundamental rights of the petitioner under Articles 14 and 16 of the Constitution of India. WPC : 28830/08 -:8:- Consequently, the promotion of the 3rd respondent in preference to the petitioner is liable to be set aside. Accordingly, I quash Exts.P4 and P5. The 2nd respondent is directed to reconsider the matter of promotion to the post of Assistant Manager(Estate). If they decide to grant promotion giving relaxation in qualification, both the petitioner and the 3rd respondent should be given equal opportunity and in such an event the petitioner being senior in service to the 3rd respondent, he should be given preference on the basis of such seniority for relaxation in qualification and consequent promotion. The writ petition is disposed of as above. S. SIRI JAGAN, JUDGE ttb