IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 21ST DECEMBER 2009 / 30TH AGRAHAYANA 1931 WA.No. 2887 of 2009() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.33019/2009 Dated 18/11/2009 .................... APPELLANT: -------------- RAMESH A, AGED 43 YEARS, S/O.RAMAN NAIR, ASSISTANT EXECUTIVE ENGINEER RELAY SUB DIVISION, KSEB, MADAKKATHARA, THRISSUR DISTRICT. BY ADV. SRI.A.ANILKUMAR SMT.R.RANJINI RESPONDENTS: --------------- 1. IRCON INTERNATIONAL LTD C-4, DISTRICT CENTRE, SAKET, NEW DELHI 110 017. 2. THE DEPUTY GENERAL MANAGER /HRM IRCON INTERNATIONAL LTD C-4, DISTRICT CENTRE, SAKET, NEW DELHI 110 017. 3. THE KERALA STATE ELECTRICITY BOARD VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. ADV. SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDI FOR R1,2 ADV. SRI.ASOK.M.CHERIAN FOR R3 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 21/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.BHAVADASAN, JJ. ------------------------------------------------------------------ WA No.2887 of 2009 ------------------------------------------------------------------ Dated 21st December 2009 Judgment Balakrishnan Nair, J. The writ petitioner is the appellant. He was an employee, working under the KSEB. When the 1st respondent invited applications for appointment to the post of Joint General Manager (Electrical), he submitted an application. His application was considered by the 1st respondent and he was offered employment as per Ext.P1 order dated 27.12.2007. One of the conditions contained in Ext.P1 order was the following : “10(c) NOC from your last employer in case you are employed in a Govt. Undertaking/Department/Autonomous body for your recruitment in IRCON. Please also note that you will have to produce an order of acceptance of your resignation issued by the competent authority in your organisation at the time of your joining IRCON if you are working in Govt./PSU.” On receipt of Ext.P1, the appellant submitted a representation on 27.03.2008, praying that he may be allowed to join the 1st respondent on deputation basis, keeping his lien in KSEB. The WA 2887/09 2 first respondent responded to that representation by Ext.P2 dated 21.5.2008, agreeing to appoint him on deputation basis, initially for a period of two years, extendable by one more year. The said offer was subject to the condition that NOC from his employer should be produced. The appellant accepted the offer made as per Ext.P2 by his letter dated 11.6.2008, it is submitted. Later, he was informed by Ext.P3 communication dated 4.7.2008, issued by the 1st respondent stating that he has been posted as Project Head of the said respondent at Panampilly Nagar, Kochi. He was also asked to join either on deputation or recruitment basis, at least by 31.07.2008. Otherwise, it was clarified that the recruitment/deputation will be cancelled. 2. Again, the appellant was alerted by Ext.P4 dated 21.7.2008 issued by the 1st respondent that he has to join duty by 31.07.2008. By communication dated 25.07.2008, the KSEB informed the 1st respondent that it has no objection in relieving the appellant for a period of one year initially, subject to terms and conditions on deputation attached to that letter. The appellant, thereafter, by his letter dated 28.07.2008, informed the 1st respondent that he will be relieved from the KSEB on receipt of the agreement on the terms and WA 2887/09 3 conditions concerning his deputation. The appellant submits, thereafter, there was no response from the 1st respondent. Finally on 13.10.2008 he was informed by Ext.P7 as follows : “With reference to your letter above, it has been decided by the Competent Authority that there is no requirement for JGM/Electrical at ICON'S KESB now. Hence the nomination of Shri.Ramesh.A., Assistant Executive Engineer, Relay Sub-Division for deputation to IRCON is not being agreed to.” 3. The appellant filed Ext.P8 representation dated 8.11.2008 praying to reconsider the matter. Finally he was informed by Ext.P9 that if he intends to join the 1st respondent, he can join before 26.12.2008. He has to join as an open market candidate and not as a deputationist. Since there is no requirement of Joint General Manager at Kochi, he is likely to be posted anywhere in India. The relevant portion of the said order reads as follows : “In terms of this office letter NO.IRCON/HRM/Elect. Engrs./74-07/3877 dated 27.12.2007, you were given an offer for appointment to the post of Jt. General Manager/Electrical in the scale of Rs.17500-400-22300 plus Special Allowance of Rs.1600 per month (IDA) through open market. In case you intend to join IRCON, the above offer is valid till 26.12.2008. However, posting will be in accordance to the WA 2887/09 4 requirement of the company and you can be posted anywhere in the office/project sites of the company except Kochi where the Management has reviewed the requirement and found that at this state there is no need for the post of JGM/Elect. at Kochi. All other terms and conditions of the letter remain the same.” Though, thereafter, the appellant offered his willingness to join on leave without allowance basis by submitting Ext.P10 representation the same was not agreed to, by the first respondent, which issued Ext.P11 communication, stating that no further extension could be given beyond 26.12.2008. It was also informed that he cannot be allowed to take up employment as an employee on leave without allowance. The appellant immediately filed Ext.P12, praying for reconsideration of the stand taken by the 1st respondent in Ext.P11 and also offering himself as an open market candidate anywhere in India. But, there was no response. Thereafter, the Writ Petition was filed in November 2009, seeking the following reliefs : “(i) to issue a writ of mandamus directing respondents 1 and 2 to permit the petitioner to join duty as Joint General Manager/Electrical (on deputation) forthwith. WA 2887/09 5 (ii) to issue such other appropriate writ, order or direction as this Hon'ble Court deem fit and proper in the facts and circumstances of the case.” The learned Single Judge dismissed the Writ Petition in limine, holding that there is nothing wrong with the change of policy adopted by the 1st respondent, not to allow the petitioner to join duty on deputation basis. The learned Single Judge also noticed that there was a delay of more than ten months in approaching this Court after the issuance of Ext.P11. Feeling aggrieved by the said Judgment, this Writ Appeal is preferred. The prayer of the appellant is for a mandamus. A mandamus will be issued from this Court, only if it is found that the 1st respondent has got a duty to allow the appellant to join duty on deputation basis and the appellant has got a corresponding right to the performance of that duty by the 1st respondent. As rightly pointed out by the learned Single Judge, it is always open to the employer to change his policy regarding engagement of Officers. If the employer says, he does not require a deputationist, but only a regular hand, there is nothing wrong with it. From the prayer quoted above, it is clear that the appellant wanted to join as a deputationist though in Ext.P12, he has claimed that he is WA 2887/09 6 willing to join as an open market candidate. Since the appellant has failed to bring to our notice, any legal right flowing from a statute, custom or contract to be appointed on deputation basis and a corresponding duty in the 1st respondent to appoint the appellant on deputation basis, he is not entitled to get any relief. Accordingly, the Writ Appeal is dismissed. K.BALAKRISHNAN NAIR, JUDGE P.BHAVADASAN, JUDGE sta WA 2887/09 7 WA 2887/09 8