IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 19TH AUGUST 2011 / 28TH SRAVANA 1933 WP(C).No. 2081 of 2007(W) ------------------------- PETITIONER(S): --------------- V.T. RAJAN, ASSISTANT (PRODUCTION) MEAT PRODUCTS OF INDIA LTD., EDAYAR, KUTHATTUKULAM, ERNAKULAM DISTRICT. BY ADV. SRI.VAKKOM N.VIJAYAN SMT.VINITHA PRASANNAN SRI.P.ANIYAN SMT.REENA.C.STEPHENSON SRI.A.S.SACHIN RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, ANIMAL HUSBANDARY DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. MEAT PRODUCTS OF INDIA LTD., EDAYAR, KOOTHATTUKULAM, REPRESENTED BY ITS MANAGING DIRECTOR. 3. B. KANAKAMMA, ASSISTANT (PRODUCTION) MEAT PRODUCTS OF INDIA LTD., EDAYAR, KOOTHATTUKULAM. 4. P.G. RAJAN, ASSISTANT (PRODUCTION) MEAT PRODUCTS OF INDIA LTD., EDAYAR, KOOTHATTUKULAM. 5. A. ALICE, ASSISTANT (PRODUCTION) MEAT PRODUCTS OF INDIA LTD., EDAYAR, KOOTHATTUKULAM. ADV. SRI.M.G.KARTHIKEYAN FOR R4 SRI.P.V.SANTHOSH JOSE FOR R4 SMT.C.SWAPNA FOR R4 SRI.A.N.KUTTAN FOR R3 SRI.K.ANAND (A.201) FOR R.2 SMT.LATHA KRISHNAN FOR R.2 SRI.SASTHAMANGALAM S. AJITHKUMAR FOR R5 SRI.P.NANDAKUMAR FOR R5 SRI.V.SHYAMOHAN FOR R5 SRI.KRB.KAIMAL, SENIOR ADVOCATE FOR R2 SRI.B.UNNIKRISHNA KAIMAL FOR R2 GOVT. PLEADER SHRI.ANTONY MUKKATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No. 2081/2007 APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE APPOINTMENT ORDER DTD.13.5.83 OF THE PETITIONER. P2. COPY OF THE ORDER DTD.15.5.84. P3. COPY OF THE LETTER DTD.16.5.84 FROM R2 TO THE PETITIONER. P4. COPY OF THE LIST OF DAILY PAID LABOURERS, ON 10.5.83. P5. COPY OF THE JUDGMENT IN O.P.No. 1442/1995 OF THIS COURT. P6. COPY OF THE JUDGMENT IN W.A.NO.161/95 OF THIS COURT. P7. COPY OF THE MEMORANDUM OF SETTLEMENT DTD.11.5.83. P8. COPY OF THE LETTER DTD.23.11.95 TO R2. P9. COPY OF THE ORDER DTD.18.4.06 OF R2. P10. COPY OF THE PETITION DTD.9.12.06 BEFORE R2. P11. COPY OF THE RELEVANT PAGES OF SENIORITY LIST OF MPI EMPLOYEES AS ON 1.1.2006. P12. COPY OF THE ORDER DTD.14.11.07. P13. COPY OF THE ORDER DTD.30.7.09. P14. COPY OF THE REQUEST DTD.12.11.10. P15. COPY OF THE GOVT. ORDER DTD.15.10.99. RESPONDENT(S)' EXHIBITS: R2A. COPY OF THE ORDER DTD.9.12.10 BY R2. R2B. COPY OF THE ORDER DTD.26.8.86. R3A. COPY OF THE CERTIFICATE DTD.25.6.1977 TO R3 BY THE GOVT. OF KERALA. R3B. COPY OF THE NATIONAL APPRENTICESHIP CERTIFICATE ISSUED TO R3. R3C. COPY OF THE APPOINTMENT ORDER DTD.2.2.84 OF R3. R3D. COPY OF THE LETTER DTD.6.2.07 TO R3 BY THE PUBLIC INFORMATION OFFICER. sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P.(C).No. 2081 of 2007 ================== Dated this the 19th day of August, 2011 J U D G M E N T The petitioner is an Assistant (Production) in the 2nd respondent- Meat Production of India Ltd. He originally entered in service on 1.1.1978 as a daily paid labourer. In the year 1983, the petitioner was selected as a trainee and on completion of the training, the petitioner was appointed as a Helper on 15.5.1984. This was as per Ext.P7 settlement, wherein the management agreed that the 21 vacancies of Helpers available would be filled up from among the daily paid labourers in accordance with their seniority. In accordance with Ext.P7, Ext.P4 seniority list was published, wherein the petitioner was serial No.1, the 4th respondent was serial No.2 and the 5th respondent was serial No.6. The 3rd respondent was appointed directly as a Helper. She was appointed on 6.2.1984. According to the petitioner, the appointment of the 3rd respondent was in violation of Ext.P7 settlement, in which, the agreement was to fill up 21 vacancies available from among the daily paid labourers and, therefore, the appointment of the 3rd respondent by direct recruitment is in violation of the settlement and consequently, the 3rd respondent cannot claim seniority over the petitioner. As far as respondents 4 and 5 are concerned, as is evident from Ext.P4 seniority list, the petitioner was senior to respondents 4 and 5. Subsequently, the petitioner and respondents 3 to 5 were promoted as Assistant (Production). In the w.p.c.2081/07 2 meanwhile, the seniority of these persons was sought to be changed by Ext.P11 seniority list, wherein the 3rd respondent was serial No.14, the 4th respondent was serial No.15 and the 5th respondent was serial No.16, whereas the petitioner was put as serial No.17. According to the petitioner, the change in seniority position is unsustainable. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs: “i) to issue a writ of mandamus or other appropriate writ direction or order directing the 2nd respondent to promote the petitioner as Supervisor (Production) on the basis of the seniority list as per Exhibit P4 before promoting respondents 3 to 5. ii) to issue a writ of mandamus or other appropriate writ direction or order directing the 2nd respondent to consider Exhibit P10 review petition dated 9.12.2006 submitted by the petitioner in accordance with law. 2. As far as the contention of the petitioner against the 3rd respondent is concerned, perhaps the petitioner could have made out a case, if he had challenged the appointment of the 3rd respondent within a reasonable time after the 3rd respondent was appointed, on the ground that the same is in violation of Ext.P7 settlement. I am not satisfied that the petitioner can, after 23 years, challenge the appointment of the 3rd respondent as against Ext.P7 settlement. Admittedly, the 3rd respondent was appointed, though by direct recruitment, on 6.2.1984 as a Helper, whereas the petitioner was appointed only on 15.5.1984. As such, I do not find any merit in the contention against seniority given to the 3rd respondent over the petitioner. w.p.c.2081/07 3 3. As far as the seniority given to respondents 4 and 5 over the petitioner is concerned, the contention of the 2nd respondent originally in Ext.P9 was that all of them were appointed on the same day and, therefore, their seniority had to be determined on the basis of their date of birth and that is why, the petitioner was put lower to respondents 4 and 5 in Ext.P11 seniority list based on the dates of birth. But the petitioner points out that in clause 5 of Ext.P7 settlement it is specifically stipulated that the seniority would be reckoned on the basis of the date of engagement as daily paid labourer. In answer to the same, the 2nd respondent now raises another contention that as per Ext.R2(a), the petitioner was earlier posted in the sales section at his request and, therefore, he loses seniority in the production section. But the petitioner contradicts the same by producing Ext.P12, which is in relation to Ext.R2(a) posting itself. In the same, it is specifically stated that the transfer of the petitioner to the sales department is purely on work arrangement basis and his lien in the production section will be retained. Therefore, the 2nd respondent is estopped from contending that because the petitioner was, in between, transferred to sales section he would lose seniority over respondents 4 and 5. In view of clause 5 of Ext.P7, wherein it is specifically agreed between the management and the unions that seniority of 21 helpers to be filled up as per the settlement has to be reckoned based on the dates of their engagement as daily paid labourers, the 2nd respondent now cannot w.p.c.2081/07 4 take a contention that the seniority has to be regulated on the basis of dates of birth. Their contention regarding loss of seniority of the petitioner in production department in view of Ext.R2(a) also falls down in view of Ext.P12 order, wherein the management themselves had agreed that the petitioner's lien in production department would be retained. In the above circumstances, it is declared that the petitioner is senior to respondents 4 and 5 in the post of Assistant (Production) and consequently, the petitioner would be entitled to promotion to the next promotion post of Supervisor (Production) in preference to respondents 4 and 5. If respondents 4 and 5 have already been promoted as Supervisor (Production) in preference to the petitioner, such promotion shall be reviewed and the petitioner shall be given promotion as Supervisor (Production) above the 4th respondent with effect from the date when the 4th respondent has been so promoted. If all of them have now been promoted, their seniority in the cadre of Supervisor (Production) shall be regulated in accordance with the seniority in the post of Assistant (Production) as declared above. Against the 3rd respondent the prayers of the petitioner are declined. The writ petition is disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge w.p.c.2081/07 5