IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 23RD MAY 2011 / 2ND JYAISHTA 1933 WP(C).No. 3649 of 2006(H) ------------------------------------- PETITIONER(S): ----------------------- 1. C.M.VENUGOPAL, FIELD ASSISTANT, KALLALA ESTATE, KALADY PLANTATION P.O., PIN-683 503. 2. C.P.VIDYADHARAN, FILED ASSISTANT, ATHIRAPPILLI ESTATE, KALADY PLANTATION P.O., PIN-683 503. 3. M.R.JAYAPRAKASH, FILED ASSISTANT, ALAKODE ESTATE, PLANTATION CORPORATION, KANNUR DISTRICT. 4. BABU SEBASTIAN, FILED ASSISTANT, ATHIRAPPILLI ESTATE, KALADY PLANTATION P.O., PIN-683 503. 5. K.N.CHANDRASEKHARAN, FILED ASSISTANT, ATHIRAPPILLI ESTATE, KALADY PLANTATION P.O., PIN-683503. BY ADV. SRI.SAIGI JACOB PALATTY RESPONDENT(S): ------------------------ 1. PLANTATION CORPORATION OF KERALA LTD., KOTTAYAM, REPRESENTED BY ITS MANAGING DIRECTOR.686 001. 2. MANAGING DIRECTOR, PLANTATION CORPORATION OF KERALA LTD., KOTTAYAM. 686 001. 3. BIJU MATHEW, FIRST GRADE FILED ASSISTANT CHANDANAPPILLIL FACTORY, PLANTATION CORPORATION OF KERALA LTD., NEDUMANKAVU P.O., VIA-KOODAL, PATHANAMTHITTA. 689 645. tss W.P.(C) NO.3649/2006 *4. MOHAN K. ABRAHAM, FIRST GRADE FILED ASSISTANT, THANNITHODE ESTATE, PLANTATION CORPORATION OF KERALA LTD., P.O.THANNITHODU, VIA-KONNI, PATHANAMTHITTA. 689 645. (REMOVED) *4TH RESPONDENT IS REMOVED FROM THE PARTY ARRAY, AT THE RISK OF THE PETITIONER AS PER ORDER DT. 22.10/2010 IN IA. 14140/2010. R1 & R2 BY ADVS. SRI.JOSEPH KODIANTHARA, SRI.MITHUN MARKOS BY ADV. SRI.MATHEW K. R3 BY SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE R3 BY ADV.SRI.R.SURAJ KUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/04/2011, THE COURT ON 23/05/2011 DELIVERED THE FOLLOWING: tss W.P.(C) NO.3649/2006 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE AWARD DTD. 30.10.1995 IN ID. 52/1992 PASSED BY THE INDUSTRIAL TRIBUNAL ALAPPUZHA.. P2:- COPY OF THE RELEVANT PORTION OF THE SENIORITY LIST OF OFFICERS PUBLISHED BY THE IST RESPONDENT ON 1.8.1987. P3:- COPY OF THE ORDER NO.PD/PA/8/35 DTD. 24.12.1998 ISSUED BY THE 2ND RESPONDENT. P4:- COPY OF THE JUDGMENT DTD. 13.7.2005 IN OP. 6480/1999 PASSED BY THIS HONOURABLE COURT. P5:- COPY OF THE ORDER NO.PD/PA/5510/DTD. 1.12.2005 ISSUED BY THE 2ND RESPONDENT. P6:- COPY OF THE ORDER NO.PD/PA/3904/DT.D 18.6.2007 ISSUED BY THE END RESPONDENT. P7:- COPY OF THE ORDER NO.PD/PA/1113 DTD. 16.5.2008 ISSUED BY THE 2ND RESPONDENT. RESPONDENT'S EXHIBITS NIL:- TRUE COPY P.S. TO JUDGE tss T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.3649/2006-H ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 23rd day of May, 2011 J U D G M E N T The petitioners have approached this Court seeking to quash Ext.P5 order to the extent to which it denies promotion to the post of First Grade Field Assistant and also for consequential benefits. 2. The case has got a chequered history. Actually, the petitioners had approached the Industrial Tribunal wherein, Ext.P1 award was passed in their favour. The claim raised by the petitioners for fixation of seniority in terms of the award was also agitated before this Court and by Ext.P4 Judgment, this Court found in their favour. The short question herein is whether the benefits flowing from the award of the Industrial Tribunal and from Ext.P4 Judgment have been fully granted. 3. The petitioners and respondent Nos.3 and 4 are dependants of the employees of the first respondent-Plantation Corporation of Kerala Limited. The deceased employees were holding the post of Field Assistant and, according to them, as per dying-in-harness scheme of the Plantation Corporation, the petitioners were entitled to get appointment as Field Assistants even at the initial stage. W.P.(C). No.3649/2006 -:2:- 4. By separate applications, they applied for the post, but the Corporation at that time took the stand that there were no vacancies in the post of Field Assistant and the petitioners could be appointed in the posts of Peon/Watchman if they submit their willingness for the same. It is their case that even though they did not submit any willingness, they were appointed as Peon/Watchman/Gateman with an offer that they will be appointed as Field Assistants as and when vacancies arise. Since the above promise was not implemented in spite of the fact that future vacancies arose in the post of Field Assistant, they approached the Industrial Tribunal as per I.D.No.52/1992. 5. By Ext.P1 award they were directed to be given appointment as Field Assistants from the date on which the first among the four junior claimants was appointed, i.e., from 09/02/1989. It was made clear that retrospective promotion so given shall only be notional and the workmen will be entitled for monetary benefits attached to the post of Field Assistant only from 01/11/1995. The award is dated 30/10/1995. 6. Further disputes arose when the seniority list was published provisionally as per Ext.P2 wherein respondents 3 and 4 were showed above petitioners. They filed O.P.No.5087/1998 which was disposed of W.P.(C). No.3649/2006 -:3:- directing the Corporation to finalise the provisional seniority list taking into account the contentions raised by the petitioners in the original petition. But, contrary to their expectations, Ext.P2 list was finalised as such as per Ext.P3, which was later challenged by them by filing O.P.No.6480/1999. 7. This Court allowed their writ petition as per Ext.P4 wherein their right to have the seniority was declared. The operative portion of the Judgment which is relevant for the purpose of this case is extracted below:- “As far as the seniority is concerned, once a person is appointed, be it notionally or otherwise from a particular date, such an employee is entitled to count his seniority from the date of his appointment. For all purposes except the actual wages, the petitioners are employees of the respondent Corporation with effect from 09/02/1989. Therefore, any Field Assistant who was appointed after 09/02/1989 can take a rank only below the petitioners, in view of Ext.P3 award. If there are others who were appointed on the same date, the inter se seniority among those people has to be fixed based on the date of birth. Accordingly, I quash Ext.P2. Fresh orders shall be passed in the light of this Judgment within three months. The W.P.(C). No.3649/2006 -:4:- consequential benefits, if any, flowing therefrom shall also be granted within another one month.” 8. In spite of the direction in the Judgment to grant seniority and consequential benefits, when Ext.P5 order was passed, the Corporation made it clear that “as the promotion of Field Assistant to First Grade Field Assistant was made by selection considering seniority, suitability, merit etc., no consequential benefits will flow to the petitioners or others on the basis of the Judgment referred above”. This stipulation was made even after the petitioners were placed above respondent Nos.3 and 4. 9. It is pointed out in the writ petition that there had not been any promotion of Field Assistants on the basis of seniority, suitability, merit etc. and the said plea is not correct. Exts.P6 and P7 are orders which were passed during the pendency of this writ petition granting promotion as Senior Field Assistant as well as Field Executive to the third respondent allegedly overlooking the seniority of the petitioners. 10. The Corporation has filed a counter affidavit, the petitioners have filed a reply affidavit and the Corporation has filed an additional counter affidavit, as directed by this Court. W.P.(C). No.3649/2006 -:5:- 11. Heard the learned counsel for the petitioner and the learned Standing Counsel for the Corporation. 12. As evident from the pleadings in the additional counter affidavit filed by the Corporation, the petitioners have also been granted certain promotions in the meanwhile and all the petitioners, except the second petitioner, are working as Field Executive, whereas the second petitioner is working as Senior Field Assistant. 13. The learned counsel for the petitioners submitted that the declaration made by this Court in Ext.P4 Judgment has become final. Therefore, the denial of consequential benefits cannot be supported at all and, when the seniority position is restored, they are entitled for promotion on the basis of the said seniority. 14. In fact, the learned counsel for the petitioners furnished the respective dates of promotion of the petitioners and the third respondent which are given below:- Promotion dates of Petitioners:- As First Grade Field Assistant on 25/06/2007 As Senior Field Assistant on 26/05/2009 and as Field Executive on 22/12/2010 W.P.(C). No.3649/2006 -:6:- Promotion dates of the third respondent:- As First Grade Field Assistant on 22/10/1997 As Senior Field Assistant (Ext.P6) on 18/06/2007 and as Field Executive (Ext.P7) on 16/05/2008 15. It is evident from the additional counter affidavit that the petitioners were considered for promotion in 2007 and 2010. 16. What is pointed out as a justification by the respondents is the criteria which have been fixed for promotion. It is their case that promotion is strictly done on the basis of the evaluation of the promotion committee and the criteria shall be seniority, suitability and efficiency. Accordingly the stipulations made in Ext.P5 are sought to be justified. 17. But, in the additional counter affidavit it is further pointed out that even though there is a provision in the Recruitment Rules for acquiring experience of 4 years in the feeder post, the same was relaxed in the 327th meeting of the Board of Directors of the first respondent-Corporation. 18. Evidently, the petitioners were appointed as Field Assistants, in the light of Ext.P1 award of the Industrial Tribunal, as per order dated 30/07/1996 with retrospective effect from 09/02/1989. What is pointed out by the respondents is that since the petitioners have not worked as Field W.P.(C). No.3649/2006 -:7:- Assistants from 09/02/1989 to 30/07/1996, they did not acquire the required experience of 4 years in the feeder post for promotion, and were not considered for promotion. 19. This contention cannot be accepted in the light of the findings in Ext.P4 Judgment. It is evident from the operative portion of the Judgment that this Court was of the view that “as far as the seniority is concerned, once a person is appointed, be it notionally or otherwise from a particular date, such an employee is entitled to count his seniority from the date of his appointment”. Therefore, the contention that they had not actually worked in the feeder post cannot survive as the above finding has become final. The position has also been made further clear by the following finding:- “For all purposes except the actual wages, the petitioners are employees of the respondent Corporation with effect from 09/02/1989. Therefore, any Field Assistant who was appointed after 09/02/1989 can take a rank only below the petitioners, in view of Ext.P3 award.” The petitioners were entitled for the consequential benefits in the light of Ext.P4 Judgment. W.P.(C). No.3649/2006 -:8:- 20. For all these reasons, Ext.P5 to the extent to which it denies the benefit of promotion based on the seniority in the seniority list and consequential benefits cannot be supported. Therefore, the same is quashed to that extent. 21. The petitioners will be granted promotions in the respective posts in terms of their seniority along with the consequential benefits in full implementation of Ext.P4 Judgment. Orders will be passed within two months from the date of receipt of a copy of this Judgment. The writ petition is allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) ms