IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 23RD OCTOBER 2009 / 1ST KARTHIKA 1931 WA.No. 1875 of 2009() --------------------- AGAINST THE JUDGEMENT IN WPC.28830/2008 Dated 18/06/2009 .................... APPELLANT(S): -------------- K.C.UNNIKRISHNAN, ASSISTANT MANAGER (ESTATE), YEROOR ESTATE, DIVISION D., BHARATHEEPURAM, KOLLAM. BY ADV. SRI.B.MOHANLAL RESPONDENT(S): --------------- 1. K.KRISHNAN, FIELD OFFICER, OIL PALM INDIA LIMITED, BHARATHEEPURAM P.O., KOLLAM DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, AGRICULTURE (PU)DEPARTMENT, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM. 3. THE OIL PALM INDIA LIMITED, REPRESENTED BY ITS MANAGING DIRECTOR, HEAD OFFICE, KOTTAYAM. ADV. SRI.E.K.NANDAKUMAR FOR R3 SRI.A.K.JAYASANKAR NAMBIAR FOR R3 SRI.K.JOHN MATHAI FOR R3 SENIOR GOVERNMENT PLEADER SRI. BENNY GERVACIS-R2 SRI. P.C. SASIDHARAN THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 5/10/2009, THE COURT ON 23.10.2009 DELIVERED THE FOLLOWING: KURIAN JOSEPH & C.T. RAVIKUMAR, JJ. --------------------------------------------- W.A. NO. 1875 OF 2009 --------------------------------------------- Dated this the 23rd day of October, 2009 JUDGMENT Ravikumar, J. The appellant was the third respondent in the Writ Petition and the first respondent herein was the petitioner therein. The Writ Petition was filed mainly with the prayer to quash Exts.P4 and P5 which are respectively the minutes of the Board of Directors of the third respondent - company to grant promotion to the appellant herein and the consequential order passed by the third respondent herein, promoting the appellant herein to the post of Assistant Manager (Estate). 2. Both the appellant and the first respondent belong to Scheduled Caste community and both of them were originally recruited by the Kerala Public Service Commission under Rule 17-A of the General Rules in the Kerala State and Subordinate Services Rules and appointed as Field Assistants in the Plantation Corporation of Kerala Limited. Admittedly, in the said advice list and also in the consequential order of appointment, the first respondent was shown senior to the appellant herein and they had W.A. NO. 1875/2009 2 joined the Plantation Corporation of Kerala as Field Assistants on 1.4.1977. While they were continuing so, Oil Palm India Limited, the third respondent herein was formed under the joint venture of Government of Kerala and Government of India, as a subsidiary of Plantation Corporation of Kerala Limited. While the third respondent was its subsidiary company, the employees of the Plantation Corporation of Kerala were given the option to join the subsidiary company, pursuant to which both the appellant and the first respondent opted to join the third respondent- company. Subsequently, their options were accepted and they were absorbed as employees of Oil Palm India Limited. 3. After their commencement of service under the third respondent, a vacancy in the post of Assistant Manager(Estate) arose in the company and that post was reserved for Scheduled Caste community. The qualification prescribed for appointment to the said post of Assistant Manager (Estate) was a degree with seven years of service. Admittedly, neither the appellant nor the first respondent were graduates, though both of them had 31 years of service at the time of occurrence of the said vacancy. Still, they are under graduates. While so, the Board of Directors of the third respondent - company as per Ext.P4 decided to grant the appellant herein relaxation in qualification and after granting such W.A. NO. 1875/2009 3 relaxation, he was appointed to the post of Assistant Manager (Estate) as per Ext.P5. It was challenging Exts.P4 and P5 that the first respondent herein filed W.P.(C) No.28830 of 2008. 4. Before the learned Single Judge, it was contended that the first respondent was senior to the appellant in service and both of them had the same length of service. It was further contended that being senior to the appellant, the petitioner/first respondent was equally eligible for relaxation of qualification for appointment to the post of Assistant Manager (Estate) and, therefore, going by his seniority, he should have been preferred for appointment as against the said post when the third respondent took the decision to relax the qualification and to fill up the said post. Further, it was contended that the actions of the third respondent-company in the matter of relaxation of qualification and consequential filling up of the above post by the appellant herein, were arbitrary and discriminatory and as such, violative of the fundamental rights enshrined under Articles 14 and 16 of the Constitution of India. 5. As noticed earlier, the third respondent was a subsidiary company of the Plantation Corporation of Kerala Ltd. Employees working under the Plantation Corporation of Kerala were given the right of option to go over W.A. NO. 1875/2009 4 to the service of the third respondent - company. Inspite of the said situation, surprisingly, the third respondent-company contended that the company was not aware of the seniority position of the appellant and the first respondent in the Plantation Corporation of Kerala. However, in the counter affidavit, the third respondent - company sought to justify their action in granting relaxation in qualification to the appellant herein and also in promoting him to the post of Assistant Manager (Estate). The appellant herein had also filed a counter affidavit in the Writ Petition. He did not dispute the fact that in the memo by which they were advised for appointment to the post of Field Assistant in the Plantation Corporation of Kerala Limited, the first respondent herein was shown senior to him. At the same time, he sought to sustain the action on the part of the third respondent - company by placing reliance on Ext.R2(a) order dated 10.8.2000. Ext.R2(a) is an order whereby all the Field Assistants under the third respondent - company were re-designated as Field Officers. It contains the names of eight Field Officers and the names of the appellant and the first respondent are shown therein at serial Nos.7 and 8 respectively. The appellant herein and the third respondent- company relied on Ext.R2(a) to contend that the names were arranged in the order of seniority and, therefore, the first respondent cannot now contend that he is senior to the appellant herein. They had also relied on Exts.R2(c) and R2 W.A. NO. 1875/2009 5 (d) orders, dated 17.9.2007 and 3.6.2008 respectively, whereby the appellant herein was given the charge of Assistant Manager (Estate) on the aforesaid dates. Based on the said orders, it was contended that the appellant herein was treated as senior to the first respondent. 6. The learned Single Judge considered the aforesaid rival contentions. Indisputably, all employees of the Plantation Corporation of Kerala Limited including the appellant and the first respondent were absorbed into the service of the third respondent - subsidiary company with the benefit of continuity of service in the Plantation Corporation of Kerala Ltd. It was, therefore, observed by the learned Single Judge that the third respondent - company which was a subsidiary of the Plantation Corporation of Kerala Ltd.could not have feigned ignorance about the service particulars of such employees who were absorbed into its service from the holding company. The learned Single Judge took note of the fact that none of the parties disputed the fact that in the rank list prepared by the P.S.C. for selection to the post of Field Assistant and also in the advice list issued by the P.S.C. for appointment of the appellant and the first respondent as Field Assistants in the holding company, the first respondent was shown as senior to the appellant. Taking into account all such aspects of the matter, the learned Single Judge found that option was given for W.A. NO. 1875/2009 6 going over to the subsidiary company by the appellant and the first respondent with all service benefits and that would necessarily include the seniority also. Viewing the seniority issue in that angle, the learned Single Judge held that the failure on the part of the first respondent to challenge Exts.R2(a), R2(c) and R2(d) is of no consequences and that those are not sufficient to suggest that the petitioner has acquiesced his seniority position. The admitted position that at no point of time a seniority list containing the names of the appellant and the third respondent was published in the subsidiary company was also duly taken note of by the learned Single Judge. The learned Single Judge has also referred to the contention of the third respondent in the counter affidavit which would suggest that the appellant herein was granted relaxation in qualification and consequential promotion as he was treated as senior to the first respondent herein. While upholding the fact that granting of relaxation in qualification is a matter of discretion vested with the third respondent, it was held by the learned Single Judge that the said power of discretion could also be tested in the anvil of Articles 14 and 16 of the Constitution of India. It was found that the fundamental rights of the first respondent guaranteed under Articles 14 and 16 of the Constitution of India were violated in an arbitrary and discriminatory manner and accordingly Exts.P4 and P5 were set aside. The third respondent herein, W.A. NO. 1875/2009 7 the Oil Palm India Limited was directed to reconsider the matter of promotion to the post of Assistant Manager (Estate) and in case, they decide to grant promotion giving relaxation in qualification, it was further directed that both the petitioner(first respondent herein) and the third respondent (appellant herein) should be given equal opportunity and that the first respondent, being senior in service to the appellant, should be given preference on the basis of such seniority for relaxation in qualification and consequential promotion. Feeling aggrieved by the quashing of Exts.P4 and P5 and the consequential direction, this Writ Appeal is filed by the third respondent in the Writ Petition. 7. We have heard the learned counsel on both sides. On behalf of the appellant and the first respondent, virtually all the contentions raised before the learned Single Judge were reiterated. Learned counsel for the appellant contended that the learned Single Judge was not justified in holding the first respondent as senior to the appellant. Further, it was contended that granting relaxation being a discretion, the learned Single Judge ought not to have issued direction in regard to the same. Learned counsel for the third respondent fairly submitted that the learned Single Judge was right in holding that no seniority list was published at any point of time subsequent to the joining of the appellant and the first respondent W.A. NO. 1875/2009 8 in its service. We have already adverted to the statement made by the third respondent in the counter affidavit, more particularly, to the statement that would suggest that the appellant herein was granted relaxation in qualification and consequential promotion as he was treated senior to the first respondent herein. Thus the inescapable conclusion deducible from the contentions of the third respondent is that the appellant herein was preferred to the first respondent in the matter of relaxation in qualification and in the matter of promotion on account of being treated as senior. Once the contention of acquiescence of seniority by the first respondent is held unfounded, it should follow the inevitable consequence. As noticed hereinbefore, the first respondent was senior to the appellant herein in the advice made by the PSC for effecting appointment as Field Assistant in the Plantation Corporation of Kerala Ltd. It was while the third respondent - company was its subsidiary that the appellant and the first respondent exercised their option along with other employees to go over to the service of the third respondent. The order in the list of the Public Service Commission alone is the basis for fixation of seniority in the absence of any intervening factors for loss of such seniority. The learned Single Judge is, therefore, perfectly right in holding that such employees including the appellant and the first respondent had gone over to the subsidiary company with all service benefits and that the W.A. NO. 1875/2009 9 service put in, in the holding company would include seniority also. However, we wish to clarify this position that the said finding to the extent it pertains to fixation of seniority would be applicable only for fixation of interse seniority between the appellant and the first respondent as also other optees from the holding company who belonged to the same category or grade. Exts.R2(a), R2(c) and R2(d) were rightly rejected by the learned Single Judge as inconsequential documents in the matter of deciding the seniority between the appellant and the first respondent. At any rate, such documents cannot be relied upon to canvass the position that the first respondent has acquiesced his seniority after coming over to the services of the third respondent. In the context of the dispute between them, it is apposite to note that the third respondent has not assigned any other reason other than seniority of the appellant for relaxing the qualification and also for granting consequential promotion to him. Therefore, we are of the opinion that the admitted factual position justifies the conclusion and finding of the learned Single Judge. There can be no doubt that the very avowed purpose of seniority is nothing but a consideration ahead of juniors in the matter of promotion. Based on the factual and legal position, the learned Single Judge has found that the petitioner (first respondent herein) was arbitrarily discriminated in the matter of relaxation in qualification and consequential promotion and, therefore, the action on W.A. NO. 1875/2009 10 the part of the third respondent herein is violative of the fundamental rights of the petitioner under Articles 14 and 16 of the Constitution of India. We find no reason to interfere with the said conclusions and findings in the facts and circumstances obtained in this case. 8. It is true that the question of relaxation in qualification is a discretionary power vested with the third respondent. When it is said that something is to be done within the discretion of the authorities, that something is to be done according to the rules of reason and justice, not according to personal opinion. In the matter of exercise of such jurisdiction, the maxim 'discretio est discerenere per legem quid sit justum ( discretion consists in knowing what is just in law) assumes relevance. The observation of the learned Single Judge that granting of relaxation is a discretion vested with the second respondent, that discretion can be tested in the anvil of Articles 14 and 16 of the Constitution of India, reiterates noting but a settled position of law. Since the appellant herein was preferred in the matter of relaxation in qualification and promotion by the third respondent based on a wrong reckoning of seniority, we cannot find any illegality in the direction issued by the learned Single Judge. In this context, it is noteworthy that the third respondent who is the authority to take action in terms of the directions issued by the learned Single Judge, W.A. NO. 1875/2009 11 has not preferred any appeal against the judgment of the learned Single Judge. The above discussion compels us to conclude that there is no reason to interfere with the judgment of the learned Single Judge in exercise of appellate jurisdiction. The Writ Appeal is devoid of any merit and it is accordingly dismissed. (KURIAN JOSEPH) JUDGE (C.T. RAVIKUMAR) JUDGE sp/ W.A. NO. 1875/2009 12 KURIAN JOSEPH & C.T. RAVIKUMAR, JJ. W.A. NO. 1875/2009 JUDGMENT 23rd October, 2009 W.A. NO. 1875/2009 13