IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 24TH JANUARY 2011 / 4TH MAGHA 1932 WP(C).No. 28410 of 2007(F) --------------------------------- PETITIONER(S): --------------- B.KUNHAMBU NAIR, ASSISTANT BRANCH MANAGER (SALES) S.R.NO. 554630,LIFE INSURANCE CORPORATION OF INDIA, BRANCH OFFICE, KASARAGOD. BY ADV. SRI.GEORGE JACOB (JOSE) SMT.RESHMI POULOSE RESPONDENT(S): --------------- 1. THE LIFE INSURANCE CORPORATION OF INDIA 'YOGAKSHEMA',JEEVAN BHIMA MARG., MUMBAI, REPRESENTED BY MANAGING DIRECTOR. 2. THE CHAIRMAN, LIFE INSURANCE CORPORATION OF INDIA 'YOGAKSHEMA',JEEVAN BHIMA MARG., MUMBAI. 3. THE EXECUTIVE DIRECTOR (PERSONNEL) LIFE INSURANCE CORPORATION OF INDIA 'YOGAKSHEMA',JEEVAN BHIMA MARG., MUMBAI. ADV. SRI.KRB.KAIMAL, SENIOR ADVOCATE FOR R SRI.S.EASWARAN FOR R1 TO 3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 28410 of 2007 APPENDIX PETITIONER'S EXHIBITS EXT.P1: COPY OF THE LIST OF PROMOTEES TO THE CADRE OF BRANCH MANAGER/ADMINISTRATIVE OFFICER. EXT.P2: COPY OF THE LIST AS PER OFFICE ORDER NO.PR.ADMN./2007- 08/P.O.29 DATED 27.4.2007 OF PROMOTEES TO THE CADRE OF ADMINISTRATIVE OFFICERS. EXT.P3: COPY OF REPRESENTATION DTD 3.5.2007 OF THE PETITIONER. EXT.P4: COPY OF THE OFFICE ORDER DATED 10.7.2007. EXT.P5: COPY OF THE OFFICE ORDER DATED 12.7.2007. EXT.P6: COPY OF THE JUDGMENT DATED 25.6.2007 IN WP(C)15891/2007-P EXT.P7: COPY OF THE ORDER DATED 3.9.2007 RECEIVED FROM R2. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ----------------------------------- W.P.(C) No.28410 OF 2007 --------------------------------------- Dated this the 24th day of January, 2011 JUDGMENT At the time of filing of this writ petition, the petitioner was working as an Assistant Manager (Sales) in the service of the Life Insurance Corporation of India. The grievance portrayed by him in this writ petition is regarding refusal on the part of the respondents in granting the petitioner promotion during 2005, 2006 and 2007 when a large number of his juniors have been promoted as Branch Manager. According to the petitioner, no adverse remarks in the confidential records of the petitioner have ever been communicated to him. He would contend that according to his information, his confidential reports and Development Oriented Performance Appraisal (DOPA) were excellent and exemplary and therefore, there was no reason whatsoever for not promoting him along with his juniors. He also submits that according to his information his superior officer has recommended his case for promotion, after considering his merit W.P.(C)No./10 2 and performance of duties. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs: “i) to issue a writ in the nature of certiorari or other appropriate writ or order quashing Exts.P1, P2, P4 and P5 lists to the extent the same exclude cadre of Branch Manager. ii) to issue a writ in the nature of mandamus or other appropriate writ or order directing the respondents to promote the petitioner to the cadre of Branch Manager with effect from April, 2005 when his batch-mates were promoted to the cadre of Branch Managers, with all consequential benefits. iii) to issue a declaration that the petitioner is entitled to be promoted to the cadre of Branch Manager with effect from April, 2005 when his batch-mates had been promoted to the cadre of Branch Manager with all consequential benefits; iv) to issue a writ in the nature of certiorari or other appropriate writ or order quashing Ext.P7 order of the 2nd respondent”. 2. A counter affidavit has been filed on behalf of the Life Insurance Corporation, wherein the stand taken is that an Assistant Branch Manager is not automatically entitled to promotion as Branch Manager based on seniority alone. The method of promotion is by merit and seniority and seniority is to be considered only when merit and ability are equal. The appropriate authority, which considered the question of promotion of officers on a comparative assessment of merit of all the eligible Assistant Branch Managers, found the promoted W.P.(C)No./10 3 persons superiors in merit to the petitioner and therefore, they were promoted in preference to the petitioner is the contention raised. It is further submitted that, although the petitioner was not given promotion during 2005, 2006 and 2007, in 2008 when he was found meritorious enough to be given promotion, he was so promoted on 26.5.2008. According to the respondents, the petitioner, on the basis of merit, became entitled to promotion only with effect from 26.5.2008. Therefore, according to them, the petitioner is not entitled to the reliefs prayed for in this writ petition. 3. I have considered the rival contentions in detail. In an identical case of another similarly situated person, I had allowed the claim of that person in W.P.(c)No.28179/2007. For parity of reasons given therein, I am inclined to allow this writ petition also. In paragraph 13 of the writ petition, the petitioner specifically stated that “..............To the best of his information and knowledge, his confidential reports as well as his DOPA Appraisal were quite excellent and exemplary, in no way dis-entitled him from being promoted”. Again, in Ground ‘C’ of the writ petition, he has repeated the same as follows: W.P.(C)No./10 4 “...............To the best of the knowledge of the petitioner, his confidential reports are quite excellent and exemplary. At any rate, no adverse remark has been brought to his notice during any of the previous years. Moreover, his business performance has been quite excellent.” Again in Ground 'D' he has repeated as follows: “.......It would be absolutely harsh to side-line the petitioner in the matter of promotions in the wake of his excellent Confidential Reports and his business performance”. In Ground ‘G’, he has stated as follows: “The petitioner bonafide believes that his superior officer has recommended his case for promotion reckoning discharge of his official duties and his business performance. These specific averments in the writ petition have not been specifically controverted in the counter affidavit. The respondents have not chosen to give any of the details regarding the confidential reports of the petitioner or any of the promoted juniors to show that the promoted persons were demonstrably superior in merit to the petitioner. They have taken the stand that “Confidential Report being a confidential document is not supposed to be known to the appraisee; hence the contents of the same require neither confirmation nor denial”. They state in paragraph 9 of the counter affidavit W.P.(C)No./10 5 that, “............As per practice in vogue, merit and suitability are adjudged by the Confidential Reports”. In paragraph 10, they specifically state that “............Therefore, merely because confidential reports are satisfactory with regard to particular employee, does not entitle him automatically to have been promoted to the post of Branch Manager.”. In paragraph 22 of the counter affidavit, they specifically stated thus: “In answer to the averments contained in paragraphs G,H,I,J,K and L under the Grounds of the writ petition, it is respectfully submitted that merely because Senior officer of the petitioner had recommended his case for promotion cannot be a ground to have the case considered for promotion automatically”. From the above, it is very clear that the petitioner’s averment that he had very excellent reference in the confidential records is not specifically seen denied anywhere. The respondents have not given any material to prove before this Court that the persons junior to the petitioner promoted were demonstrably superior in merit to the petitioner. I am of opinion that unless the respondents at least prima facie prove before this Court that the other persons were demonstrably superior to the petitioner in merit at least by making appropriate averments in W.P.(C)No./10 6 the counter affidavit, the respondents cannot simply take refuge under the contention that confidential records being confidential in nature cannot be disclosed. Even if the same cannot be disclosed to the petitioner, if they wanted to support their contentions in the writ petition, they had a duty to disclose the same to this Court which they have not chosen to do. Therefore, I am not inclined to accept the vague averments of the respondents on their face value in the absence of materials to support their contentions. 4. I am of opinion that a person having such excellent reference in the confidential records cannot be overlooked for promotion on the basis of such vague reasons. The petitioner would contend that during the year 2007 alone, 900 persons were promoted and altogether for all three years together it would come to more than 2000. I am unable to accept a situation where a person having such good reference in his confidential records would be liable to be overlooked for promotion to promote such a large number of juniors. Such a view would militate against commonsense. Therefore, I am satisfied that the petitioner's case had not been considered W.P.(C)No./10 7 appropriately by the respondents for promotion. 5. I am also of opinion that at this point of time, it would be impossible to reconsider the inter-se merit of the petitioner vis-a-vis that of about 900 persons, who have been preferred to the petitioner for such promotion over the years. In view of my above findings, I am satisfied that there should be a direction to the respondents to assign a promotion date to the petitioner as Branch Manager with effect from the date on which his immediate junior has been promoted. Orders in this regard shall be passed and monetary benefits arising therefrom shall be disbursed to the petitioner as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. The writ petition is allowed as above. S. SIRI JAGAN, JUDGE acd W.P.(C)No./10 8 W.P.(C)No./10 9