IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 2ND JANUARY 2009 / 12TH POUSHA 1930 WP(C).No. 23575 of 2005(F) -------------------------------------- PETITIONER: ------------------- B.M.ISHWAR, S/O.BASAPPA, B-40, FACT TOWN SHIP, UDYOGAMANDAL, ERNAKULAM DISTRICT - 683 501. BY ADV. SRI.T.RAVIKUMAR. RESPONDENTS: ----------------------- 1. UNION OF INDIA, REPRESENTED BY THE PRINCIPAL SECRETARY, MINISTRY OF INDUSTRIES, SECRETARIAT, NEW DELHI. 2. THE FERTILISERS AND CHEMICALS TRAVANCORE LIMITED, HEAD OFFICE, UDYOGAMANDAL, COCHIN - 683 501, REP. BY ITS CHAIRMAN & MANAING DIRECTOR. 3. THE CHIEF PERSONNEL MANAGER, FACT, HEAD OFFICE, UDYOGAMANDAL, COCHIN - 683 501. R1 BY ADV. SRI.P.M.POULOSE, ADDL.CGSC, R2 & R3 BY ADVS. SRI.A.M.SHAFFIQUE, SRI.E.K.NANDAKUMAR, SRI.A.K.JAYASANKAR NAMBIAR , SMT.PRIYA MAHESH. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/11/2008, THE COURT ON 02/01/2009 DELIVERED THE FOLLOWING: W.P.(C). NO.23575/2005-F: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE SELECTION LETTER DT: 27/06/1990. EXT.P.1.A: COPY OF THE TEMPORARY APPOINTMENT LETTER DTD. 13/10/1990. EXT.P.1.B: COPY OF THE APPOINTMENT LETTER DT. 16/09/1991. EXT.P.2: COPY OF THE CONFIRMATION LETTER DTD. 25/02/1992. EXT.P.3: COPY OF THE LETTER DT. 02/04/1996. EXT.P.4: COPY OF THE LETTER DTD. 20/08/1996. EXT.P.5: COPY OF THE LETTER OF FACT EMPLOYEES ASSOCIATION DT. 11/12/1997. EXT.P.6: COPY OF THE LETTER DTD. 08/04/1996. EXT.P.7: COPY OF THE LETTER SENT BY FACT TO THE DIRECTOR OF FACTORIES & BOILERS DT. 29/10/2003. EXT.P.8: COPY OF THE CERTIFICATE ENDORSED BY THE DIRECTOR OF FACTORIES & BOILERS DT. 29/10/2003. EXT.P.9: COPY OF THE PERFORMANCE RECORD PUBLISHED ON THE NOTICE BOARD DT. 27/06/2005. EXT.P.10: COPY OF THE COMMUNICATION DT. 06/05/2008. EXT.P.11: COPY OF THE LETTER DTD. 30/10/2003. EXT.P.12: COPY OF THE REPRESENTATION DT. 15/12/2004. EXT.P.13: COPY OF THE CERTIFICATE ISSUED BY THE DEPUTY CE (M) T-PD DT. 21/10/03. EXT.P.14: COPY OF THE CERTIFICATE OF PROFICIENCY AS BOILER OPERATIONS ENGINEER DT. 20/01/1990. RESPONDENTS' EXHIBITS: EXT.R2.A: COPY OF THE CLAUSE 4 OF THE SEMI ANNUAL REVIEW SCHEME, WHICH IS ANNEXURE VI OF THE PROMOTION POLICY SETTLEMENT DTD. NIL. EXT.R2.B: COPY OF THE ORDER DTD. 8TH OCTOBER 2003, NO.GM (P)-CO-508 FROM THIS RESPONDENTS. //TRUE COPY// P.S. TO JUDGE. prv. P.N.Ravindran, J. ================ W.P(C).No.23575 of 2005 ================== Dated this the ..nd day of December, 2008. JUDGMENT The petitioner entered service as Technician (Thermal) Mechanical in the Petrochemical Division of the second respondent Company. The appointment was for a period of six months. The temporary appointment was extended on a couple of occasions and ultimately his service terminated on 15.9.1991. Later, he was regularly appointed as Technician (Thermal) Mechanical in the Petrochemical Division of the first respondent Company. As per Ext.P1(b) he joined duty on 23.9.1991. On completion of the prescribed period of probation, the petitioner was confirmed in service with effect from 15.11.1991 as per Ext.P2 memo dated 25.2.1992. The petitioner possesses certificate of proficiency as Boiler Operation Engineer issued under the provisions of the Karnataka Boiler Operation Engineer's Rules 1959. Section 6 of the Indian Boilers Act, 1923 stipulates that no owner of a boiler shall use the boiler or permit it to be used unless it has been registered in accordance with the provisions of the Act and where the State Government has made rules requiring that boilers shall be in charge of persons holding certificates of proficiency or competency, unless the boiler is in charge of a person holding the certificate required by such rules. Section 11 of the Act WP(C) 23575/05 -: 2 :- states that the Chief Inspector may at any time withdraw or revoke any certificate or provisional order on the report of an Inspector or otherwise where the State Government has made rules requiring that boilers shall be in charge of persons holding certificates of proficiency or competency. 2. The State of Kerala has framed the Kerala Boiler Operation Engineer's Rules, 1957. Rule 3 thereof stipulates that the boilers shall not be used unless they are placed in direct charge of a competent person specified in Rule 4 in addition to such number of boiler attendants as may be prescribed by the Chief Inspector of boilers. Rule 4 of the Rules stipulates that no person who does not possess a certificate of proficiency as a Boiler Operation Engineer under these rules shall be deemed a fit and proper person to hold charge of a boiler or boilers exceeding the limits laid down in Rule 3. Rule 24 of the Rules stipulates that a person holding a certificate of proficiency as a Boiler Operation Engineer granted by a Board of Examiners under the corresponding rules in any other State shall on application, have the certificate endorsed for validity in the State of Kerala. Rule 33 of the Rules states that a candidate for a certificate of proficiency as a Boiler Operation Engineer shall not be less than 23 years of age and shall not be admitted to the examination unless he proves to the satisfaction of the Chairman that he has successfully completed among other things, a degree or diploma in mechanical or electrical engineering recognised by the institution of Engineers (India). The Chairman of the first respondent Company has a WP(C) 23575/05 -: 3 :- boiler of the kind described in Rule 30. In the Sulphuric Acid plant of the Cochin Division of the Company, boiler having heating surface area above 700 sq.m. is to be placed in charge of a person who possesses Boiler Operation Engineer certificate. The Director of Factories and Boilers during his visit in August, 2003 directed that the boiler should be in charge of a competent person having a certificate in Boiler Operation Engineer. Since no one of the employees of the first respondent Company at that point of time had possessed the certificate of Boiler Operation Engineer and as the petitioner was thus working in the Petrochemical division, he was deputed to the Cochin division and posted as Technician (Thermal) Mechanical and the boiler was placed in his charge. This fact was informed to the Director of Factories and Boilers in Ext.P7 letter dated 29.10.2003 and the petitioner was also deputed to proceed to Thiruvananthapuram to have his certificate of proficiency in Boiler Operation Engineer endorsed by the Director of Factories and Boilers in terms of Rule 24 of the Rules. The claim made by the petitioner in this Writ Petition is that as he is only an employee in the first respondent Company having a certificate of proficiency in Boiler Operation Engineer and as the boiler in the Cochin division of the first respondent Company has to be in charge of a competent person a certificate of proficiency as Boiler Operation Engineer, the respondents are bound to promote him to the said post with effect from 21.10.2003, that he was placed in charge of Cochin division. In this Writ Petition, the WP(C) 23575/05 -: 4 :- petitioner prays a writ in the nature of mandamus commanding the respondents to promote him as Engineer with effect from the date on which he joins as Boiler Operator Engineer and thereafter as Assistant Plant Manager. 3. The respondents have filed a counter affidavit contending inter alia that the petitioner was placed in charge of the boiler not after promotion as Engineer, but as Technical (Thermal) Mechanical only. They contend that the petitioner was deputed to the Cochin division and placed him in charge of the boiler as he possessed certificate of proficiency in Boiler Operation Engineer, that Sri.K.M.Dandapani, Sri.D. Venugopal and Sri.K.K.Viswanathan who were also Technician Mechanical in the Petrochemical division are much senior to the petitioner in service, that they were promoted as Engineers in the Petrochemical division on a completion of 12 years service as Technician, which is the experience stipulated for promotion to the said post, that there was a ban on promotion in the Company since 22.11.2002, that subject to availability of suitable vacancies and lifting of the ban on promotion, the petitioner will be considered for promotion as Engineer along with other eligible candidates and that the mere fact that the petitioner was placed in charge of boiler to satisfy the requirements of the Kerala Boiler Operation Engineers' Rules, 1957, does not ipso facto entitle the petitioner to claim appointment as Engineer bypassing the promotion policy presently in force in the first respondent Company. From the WP(C) 23575/05 -: 5 :- pleadings and the materials available on record, it is evident that the petitioner was appointed as Technician (Thermal) Mechanical on a regular basis as per Ext.P1(b) letter dated 16.9.1991 taking note of his past temporary service. There is no material to indicate that the petitioner is senior most Technician (Terminal) Mechanical eligible to be promoted to the category of Engineer. The claim made by the petitioner in the Writ Petition is that as he is a person who is in charge of the boiler, he is entitled to be promoted to the category of Engineer. He relies on the provisions contained in the Indian Boilers Act, 1923 and the Kerala Boiler Operation Engineers' Rules, 1957 in support of the said contention. In my considered opinion, there is no merit in the claim made by the petitioner. The Indian Boilers Act, 1923 or the Kerala Boiler Operation Engineers' Rules, 1957 only state that a boiler having heating surface area in excess of 700 sq. mts. is to be placed in charge of an employee who possesses Boiler Operation Engineer certificate. That by itself was not mean that it should be to promote to the category of Engineer bypassing the promotion policy or overlooking the seniority of such persons in the lower category eligible for promotion to the category Engineer. It is the promotion policy presently in force in the first respondent Company that governs promotions to the higher post. The petitioner cannot in my opinion claim promotion than his senior to the category of Engineer merely for the reason that he is a person in charge of boiler in the Cochin division of the first respondent Company. The WP(C) 23575/05 -: 6 :- appointment of the petitioner to the Cochin division was on deputation as Technician (Thermal) Mechanical and not as Engineer and he was placed in charge of the boiler to comply with the stipulations in the Indian Boilers Act, 1923 and the Kerala Boiler Operation Engineer's Rules, 1957. Therefore, the mere fact that he was placed in charge of the boiler may not confer on him any superior right to be promoted to the category of Engineer bypassing the promotion policy . The petitioner's service is bound by the promotion policy in force in the first respondent Company. The mere fact that he was placed in charge of the boiler cannot confer on the petitioner any superior right to claim promotion to the category of Engineer bypassing the claim made by the petitioner for such promotion is in my opinion, not founded on any logic or reason. The provisions of the Indian Boilers Act, 1923 and the Kerala Boiler Operation Engineers' Rules, 1957, cannot in my opinion supersede the promotion policy. The stipulation in the Act and Rules that the boiler shall be placed in the direct charge of a competent person, does not mean that a person should be promoted as Engineer. The Act and the Rules only say that the boiler shall be in charge of a person possessing a certificate of proficiency in Boiler Operation Engineer. The designation attached to the person holding the post is not prescribed in the said Act or Rules. In such circumstances, the reliefs prayed for by the petitioner cannot be granted. The Writ Petition accordingly fails and is dismissed. It is clarified that the dismissal of the Writ Petition will not stand in the way of WP(C) 23575/05 -: 7 :- the petitioner to move for regular promotion to the category of Engineer in terms of the promotion policy as and when demand arises after the ban on promotion is lifted. P.N.Ravindran, Judge. ess 13/12 WP(C) 23575/05 -: 8 :- The petitioner is at presently working as Senior Technician in the Cochin Division of the Fertilizers And Chemicals Travancore Limited (FACT for short). The petitioner was initially appointed as Technician (Mechanical) Thermal in the FACT on a temporary basis for a period of six months from 13.10.1990, as per Ext.P1 dated 27.7.1990. The said appointment was extended for a further period of six months. Thereafter, the petitioner was regularly appointed following a selection process as Technician (Mechanical) Thermal in Petrochemical Division of the FACT. By Ext.P1(b), the petitioner was called upon to report for duty on 23.9.1991. Ext.P1(b) stipulates that the petitioner will be on probation for a period of one year. 2. As directed in Ext.P1(b), the petitioner reported for duty on 23.9.1991 before the Chief Personal Manager, FACT. Taking note of the petitioner's prior services as Technician (Mechanical) Thermal though on a temporary basis, he was confirmed in the post of Technician (Mechanical) Thermal with effect from 15.11.1991. Ordinarily, the petitioner would have been confirmed only on the completion of the period of probation of one year from 23.9.1991. However, taking note of his past services though on a temporary basis, WP(C) 23575/05 -: 9 :- he was confirmed with effect from 15.11.1991. 3. The pleadings disclosed that after the petitioner completed 12 years of service as Technician (Mechanical) Thermal, he was promoted as Senior Technician (Mechanical) Thermal pursuant to settlement arrived at between the management and the employees on 16.11.1995. Ext.P10 is the prospects issued in that regard on 6.5.2008. Ext.P10 discloses that the petitioner was promoted on the basis of the settlement dated 16.11.1995. Even before the petitioner was promoted as Senior Technician (Mechanical) Thermal by Ext.R2(b) proceedings dated 8.10.2003, the petitioner was deputed from Petrochemical Division to Cochin Division. Ext.P10 was issued promoting him as Senior Technician (Mechanical) Thermal. 4. The petitioner has in this Writ Petition claimed promotion as Deputy Plant Manager on the ground that from the post of Technician he was promoted as Engineer. No material has been produced to show that besides the promotion as Senior Technician (Mechanical) Thermal evidenced by Ext.P10, the petitioner has been promoted to the post of Engineer and transferred to the Cochin Division. A reading of the Writ Petition discloses that the claim of the petitioner was founded on the plea that he was transferred to the Cochin Division on being promoted to the post of Engineer from the post of Technician WP(C) 23575/05 -: 10 :- (Mechanical) Thermal. The documents produced in the Writ Petition do not prove that he has been promoted and posted from the post of Technician (Mechanical) Thermal to the post of Engineer. On the other hand, Ext.P10 dated 6.5.2008 discloses that he was promoted from the post of Technician (Mechanical) Thermal to the post of Senior Technician (Mechanical) Thermal. 5. The Writ Petition in my opinion, is misconceived and without any merit. The Writ Petition accordingly fails and it is dismissed. The dismissal of the Writ Petition will not stand in the way of the petitioner being applied for further promotion based on his qualifications. P.N.Ravindran, Judge. ess 24/7 Order WP(C) 23575/05 -: 11 :- When the above Writ Petition was heard and dismissed by me on 22.7.2008, I did not have the opportunity to hear Sri.T.Ravikumar, the learned counsel appearing for the petitioner. The Writ Petition was dismissed after hearing the arguments on the side of the respondents alone. The case was posted today for "to be spoken" on mention being made by Sri.Ravikumar, the learned counsel for the petitioner. Though judgment was dictated in court on 22.7.2008 dismissing the Writ Petition, I have not signed the judgment. After hearing the learned counsel for the petitioner at length today, I feel that the Writ Petition has to be heard afresh. Therefore, the judgment dismissing the Writ Petition is recalled and the Writ Petition is posted for further hearing to 29.7.2008.