IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 3RD JULY 2008 / 12TH ASHADHA 1930 WA.No. 184 of 2008(D) ------------------------------- AGAINST THE JUDGEMENT IN W.P.(C).NO.24333/2007 DATED 10/08/2007 .................... APPELLANT/ PETITIONER IN THE W.P.(C): ------------------------------------------------------------ K.G.VARGHESE, SENIOR FIELD ASSISTANT, KALLALA FACTORY, KALLALA ESTATE, PLANTATION CORPORATION OF KERALA LTD., KALADY PLANTATION P.O., ERNAKULAM DIST. BY ADV. SRI.M.V.THAMBAN. RESPONDENTS/ RESPONDENTS IN W.P.(C): --------------------------------------------------------------- 1. PLANTATION CORPORATION OF KERALA LTD., KOTTAYAM-4, REPRESENTED BY ITS MANAGING DIRECTOR. 2. N.K.KRISHNAN, FIELD EXECUTIVE (RTD. FROM ATHIRAPPALLY ESTATE OF PLANTATION CORPORATION OF KERALA LTD)., NOW RESIDING AT NELLADAN HOUSE, THAVALAPPARA, MANJAPRA P.O., ERNAKULAM DISTRICT. BY SRI. JOSEPH MARKOSE, S.C. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 03/07/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.Koshy & P.N.Ravindran, JJ. ===================== W.A.No.184 of 2008 ===================== Dated this the 2nd day of July, 2008. JUDGMENT Koshy,J. The petitioner - appellant was working as Senior Field Assistant in the Kallala Factory of the Plantation Corporation of Kerala Ltd., a Government of Kerala undertaking. His grievance is that his junior, the second respondent, was promoted to the higher posts of Senior Field Assistant and Field Executive overlooking her claims. The petitioner was originally appointed as Field Assistant in the service of the first respondent on 24.4.1980. The second respondent was appointed on 1.10.1980. Both of them were appointed from the rank list prepared by the Public Service Commission in which the petitioner was rank No.3 and the second respondent was only rank No.4. The petitioner was admittedly senior. The next promotion post is First Grade Field Assistant. The second respondent was promoted by the first respondent on 2.6.1995 (Ext.P2) superseding the claim of WA 184/08 -: 2 :- the petitioner. The petitioner filed an appeal against that promotion before the first respondent. The appeal was rejected by Ext.P4. According to the petitioner, the petitioner was excluded from the select list for promotion to the post of First Grade Field Assistant for extraneous reasons. 2. According to the petitioner, he was attacked by some of the employees belonging to a particular union. He submitted a complaint before the Group Manager. There was pressure from the union leaders to withdraw the complaint. But he was not prepared to withdraw the complaint. The union leaders prevailed upon the Managing Director to deny promotion to the petitioner. The petitioner without any delay filed O.P.No.11563 of 1995. By Ext.P6 judgment the learned single Judge directed the Board of Directors to consider the matter. In paragraph 2 of the judgment, it was held as follows: "2. The learned counsel for the 1st respondent made available to me the Settlement between the Management and the workmen, concluded on 04.05.1965, governing promotions. The relevant clause of the said Settlement reads as follows:- "Normally, promotions should be WA 184/08 -: 3 :- from the junior grades on the basis of seniority, efficiency and suitability. Only where no suitable staff is available should an outsider be appointed. Going by the above clause, a senior can be superseded, if only there is a clear finding that he is inefficient or unsuitable. Going by Ext.P4, it is not clear, whether there is a finding that the petitioner is inefficient or unsuitable for promotion. It would appear that some uncommunicated Confidential Records of the petitioner were also relied on by the 1st respondent, while considering his promotion." The learned single Judge also noticed that he was subsequently promoted as First Grade Field Assistant on 29.3.1996. Therefore, he was suitable for promotion. According to the appellant, he is entitled to be promoted with retrospective effect from the date the second respondent, his junior was promoted. Therefore, the matter was directed to be considered by the Board of Directors after receiving appeal from the petitioner. The Writ Petition was disposed of only on 7.1.2005. Nearly two years after the judgment, the Managing Director by Ext.P8 dated 18.12.2006 rejected the appeal. Now the petitioner is due for retirement. WA 184/08 -: 4 :- The petitioner challenges Ext.P8. In Ext.P8, it is stated as follows:. "The sub committee of the board placed the above observations before the Board of Directors in the meeting held on 16.1.2006 and they have again examined all the observations of the Sub Committee and concluded that the Corporation has not taken a biased or discriminated view against you as alleged by you, but followed only the promotion process and procedure in existence which found your immediate junior Sri.N.K.Krishnan as a worthy employee for promotion at that time along with 14 others. In the circumstances, the Board decided not to admit your claim." 3. It is the case of the petitioner that in 1995, there were no adverse remarks written in the confidential report and even the present adverse remarks mentioned were not communicated to him so far. Unless the adverse remarks are shown to him, to get explanation, it cannot be relied on. The petitioner has been promoted subsequently. Admittedly, the petitioner is senior and he was qualified. Except certain incorrect remarks in the confidential report subsequently prepared, there is nothing WA 184/08 -: 5 :- against the petitioner. In view of the settlement provision, the seniority should be considered. 4. Even according to the respondents, there was no complaint against the petitioner after 1996. In the promoted post also there was no complaint against the petitioner. Even though Ext.P8 was passed after the judgment of this Court and after having obtained the views of this Court in Ext.P6, we wanted to see the files relating to the promotion on 31.1.2008. A Division Bench of this Court passed an order as follows: "The 1st respondent is directed to produce the file leading to Ext.P8 and also the file leading to the promotion in which the appellant was overlooked." But the files were not produced, which would also give rise to an adverse inference against the respondents. We are of the view that there is no reason for not promoting the petitioner to the post of First Grade Field Assistant on 2.6.1995, the date on which the second respondent was promoted and consequentally he is also entitled to consequential benefits with effect from the date when the second respondent was promoted. We also notice that the second respondent retired as Field Executive and thereafter WA 184/08 -: 6 :- the petitioner was promoted as Field Executive Assistant in May, 2008. He is entitled to be promoted as Field Executive with effect from the date on which the third respondent, his junior was promoted. In the above circumstances, we allow the Writ Appeal with consequential benefits. J.B.Koshy, Judge. P.N.Ravindran, Judge. ess 19/7