IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 15TH DECEMBER 2009 / 24TH AGRAHAYANA 1931 WP(C).No. 16350 of 2004(U) ------------------------------------ PETITIONER(S): --------------- M.K.ASOKAN, OILMAN (POWER HOUSE), COCHIN PORT TRUST, RESIDING AT PORT TRUST QUARTER NO.E1/213, 10TH CROSS ROAD, WILLINGDON ISLAND, KOCHI-3. BY ADV. MR.N.SUKUMARAN MR.S.SHYAM MR.N.K.KARNIS MR.BOBBYMATHEW KOOTHATTUKULAM MR.LATHEESH SEBASTIAN RESPONDENT(S): --------------- 1. KOCHIN PORT TRUST, REPRESENTED BY ITS SECRETARY, WILLINGDON ISLAND, KOCHI-9 2. CHIEF MECHANICAL ENGINEER, COCHIN PORT TRUST, KOCHI-9 3. EXECUTIVE ENGINEER (ELECTRICAL), COCHIN PORT TRUST, KOCHIN-3. 4. C.G.SHALAPPAN, OILMAN (POWER HOUSE), COCHIN PORT TRUST, WILLINGDON ISLAND KOCHIN-9 5. M.J.KUMARAN, OILMAN (POWER HOUSE), DO.DO 6. P.V.BALAN, OILMAN (POWER HOUSE), DO.DO. BY ADVS. MR. P. GOPINATH MR.E.K.NANDAKUMAR FOR R1TO3 MR.A.K.JAYASANKAR NAMBIAR FOR R1TO3 SMT.PRIYA MAHESH FOR R1TO3 SMT.PRIYA MANJOORAN FOR R1TO3 MR.NAGARAJ NARAYANAN FOR R4 MR.NAIR AJAY KRISHNAN FOR R4 MR.RAJAN VELLOTH FOR R4 MR.SAIJO HASSAN FOR R4 MR.A.S.SABU FOR R4 MR.A.G.GIRISH KUMAR FOR R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 16350 of 2004(U) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 - TRUE COPY OF THE CIRCULAR DT. 29.10.2001 ISSUED BY 3RD RESPONDENT BEARING NO.E5/APPT.ELE/2001. EXT.P2 - TRUE COPY OF THE APPLICATION SUBMITTED BY TE PETITIONER DT.6.11.2001. EXT.P3 - TRUE COPY OF TE MEMO ISSUED BY THE 3RD RESPONDNET DATED 29.5.2002 TO THE PETITIONER BEARING NO.E5/REDEPLOYMENT 2002. EXT.P4 - TRUE COPY OF THE ORDER OF THE 3RD RESPONDENT DT.10.7.2002 BEARING NO.E5/APP.ORDER OILMAN 2002. EXT.P5 - TRUE COPY OF THE JOINING REPORT SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DT.11.7.2002. EXT.P6 - TRUE COPY OF THE DRAFT SENIORITY LIST PUBLISHED BY THE 3RD RESPONDENT DT.31.10.2002 BEARING NO.E5/SENIORITY LIST/2002. EXT.P7 - TRUE COPY OF THE OBJECTION SUBMITTED BY 4TH RESPONDENT TO EXT.P6 DT. 8.11.2002. EXT.P8 - TRUE COPY OF THE OBJECTION SUBMITTED BY 5TH RESPONDENT NO. EXT.P6 DT. 8.11.2002. EXT.P9 - TRUE COPY OF THE SENIORITY LIST PUBLISHED BYTHE 3RD RESPONDENT DT. 6.3.2003 BEARING NO. E5/CIRCULAR/2002. EXT.P10 - TRUE COPY OF the OBJECTION SUBMITTED BY PETITIONER TO EXT.P9 DT.20.3.2003. EXT.P11 - TRUE COPY OF THE SENIORITY LIST PUBLISHED BY THE 3RD RESPONDENT DT. 31.8.2003. EXT.P12 - TRUE COPY OF THE RECRUITMENT RULES FOR DRIVER (POWER HOUSE) OF COCHIN PORT TRUST. EXT.P2(a) - TRUE COPY OF THE SELECT LIST PREPARED BY THE STAFF SELECTION COMMITTEE OF THE 1ST RESPONDENT. EXT.P13 - TRUE COPY OF THEORDER OF THE 3RD RESPONDENT DATED 13.7.2004. RESPONDENTS'EXHIBITS: EXT.R2(a) - TRUE COPY OF THE CIRCULAR DATED 1.11.2002 NO.E5/APPT./ELE/2001. EXT.R2(b) - TRUE COPY OF THE SENIORITY LIST RELEVANT PORTION, DATED 1.1.2000 IN THE CATEGORY OF MAZDOOR (ELECTRICAL) EXT.R4(a) - TRUE COPY OF THE CIRCULAR DATED 1.11.2001 OF THE 3RD RESPONDENT. // TRUE COPY // PA TO JUDGE rhs S. SIRI JAGAN, J ................................................ W.P(C) No. 16350 of 2004 ................................................. Dated this the 15th day of December, 2009 J U D G M E N T Petitioners and respondents 4 to 6 joined service of the Cochin Port Trust as Mazdoors. The petitioner and the 6th respondent joined the Electrical Division on the same day. Respondents 4 and 5 joined the Sanitary Division prior to the petitioner and the 6th respondent joining service. While they were working as Mazdoors, the Port Trust published Ext.P1 circular dated 29.10.2001 calling for applications from qualified experienced and willing Mazdoors in Electrical division for appointment against four vacancies of Oilman (Power House). The petitioner applied. It appears that respondents 4 to 6 also applied. A Staff Selection Committee interviewed the applicants and drew up Ext.P2(a) rank list, in which the petitioner was rank No.1, the 6th respondent was rank No.2, the 5th respondent was rank No.3 and the 4th respondent was rank No.4. Pursuant to the same, they were appointed as Oilman (Power House). All of them joined duty on the same day. Subsequently, Ext.P6 draft seniority list in respect of various posts in Cochin Port Trust was W.P(C) No. 16350 of 2004 -2- published. In the category of Oilman, Ext.P6 contain the names of the petitioner and respondents 4 to 6 in the order they were ranked in Ext.P2(a) rank list. Respondents 4 and 5 filed Ext.P7 and P8 objections to the draft seniority list contending that since in the post of Mazdoors, they were senior to the petitioner, they are entitled to be given seniority ahead of the petitioner in the post of Oilman also. Apparently based on those objections, Ext.P9 revised seniority list has been published wherein the 4th respondent was shown at serial No.1, 5th respondent was shown at serial No. 2, the petitioner was shown at serial No. 3 and the 6th respondent was shown at serial No.4. Against the same, the petitioner filed Ext.P10 objections. On receipt of the same, Ext.P11 revised seniority list was published wherein the petitioner was still pushed down as serial No. 4 and the 6th respondent was promoted to serial No.3. It is challenging the said seniority, the petitioner has filed this writ petition. While the writ petition was pending, the 4th respondent was further promoted by Ext.P13 order. Therefore the petitioner has amended the writ petition challenging Ext.P13 promotion given to the 4th respondent also. W.P(C) No. 16350 of 2004 -3- 2. The contention of the petitioner is that although the petitioner was junior in the cadre of Mazdoor, since the appointment to the post of Oilman was by direct recruitment after preparing a rank list, the seniority in the cadre of Oilman has to be in accordance with the rank assigned to the selected persons in the rank list and not in accordance with the seniority in the cadre of Mazdoors. The petitioner therefore seeks the following reliefs: “A. Call for the records relating to Exts.P1 and P12 from the Respondents 1 to 3; B. Quash Exts.P9 and P11 by the issue of a writ of Certiorari or other appropriate writ, direction or order; C. Issue a writ of mandamus commanding the Respondents 1 and 2 to promote the petitioner to the existing vacancy of Driver (Power House) under them;” 3. A counter affidavit has been filed by the Cochin Port Trust supporting the impugned seniority given respondents 4 to 6. According to them, subsequent to issue of Ext.P1 circular dated 29.10.2001, Ext.R2(a) dated 1.11.2001 was issued wherein the post of Oilman was to be filled up posting Mazdoor by transfer from Civil Engineering Department. According to the 2nd respondent, since the selection was pursuant to Exts.P1 and R2(a), the appointment of Mazdoors as Oilman was only by W.P(C) No. 16350 of 2004 -4- transfer and therefore they would carry their seniority in the cadre of Mazdoors to the cadre of Oilman also. It is pointed out in Ext.R2(b) Seniority list of Mazdoors of the Electrical Division, the 6th respondent was senior to the petitioner and therefore in Ext.P11, the 6th respondent was given seniority over the petitioner, although they joined on the same date. The 4th respondent also has filed a counter affidavit taking the very same contention. 4. I have considered the rival contentions in detail 5. Before going into the merits of the contentions I am constrained to comment that the situation discloses a state of utter disregard to statutory rules in Cochin Port Trust, at least in respect of appointments to the post of Oilman. When I enquired with the counsel for the Port Trust as to whether there are not any recruitment rules prescribed for the post of Oilman, the counsel handed over to me the recruitment rules for the post of Oilman (Power House) in Electrical Division, as per which the method of recruitment is by direct recruitment. Therein the qualification prescribed is “literate: studied up to 8th standard and 2 years experience in oiling and greasing of rotating W.P(C) No. 16350 of 2004 -5- machines. Despite this specific recruitment rules prescribed by the Cochin Port Trust, I am dismayed to find that the Port Trust has chosen to file a counter affidavit stating that this particular appointment was by transfer from among Mazdoors. I am of opinion that the Cochin Port Trust will do well to strictly confine appointments to Cochin Port Trust based on recruitment rules framed for that purpose, in so far as ours is a country governed by rule of law and of instrumentalities of state are also expected to follow rule of law in their service matters also. 6. As I have already stated the method of recruitment as per recruitment rules is by direct recruitment. Of course in Ext.P1 circular issued by the Port Trust, it is not mentioned as to the method of recruitment. But applications have been invited from among Mazdoors of Electrical Division. Strangely in Ext.R2 (a) issued barely two days after issue of Ext.P1, that also is given a go-by and the caption of Ext.R2(a) is “Posting of Mazdoors by transfer from Civil Engineering department against various posts in this division”. The division mentioned thereunder is Electrical division. From among the applicants the Port Trust in fact conducted a selection and drew up Ext.P2(a) rank list, which W.P(C) No. 16350 of 2004 -6- states that the Staff Selection Committee met on 12th, 13th and 14th June 2002 and selected candidates mentioned therein for appointment to three posts, including the post of Oilman (Power House). Therein, in the rank list for Oilman, the petitioner is shown as the first, the 6th respondent is shown as the second, the 5th respondent is shown as the third and the 4th respondent is shown as fourth ranked candidates in the selection. In fact while drawing up Ext.P6 seniority list, they followed the same order as in Ext.P2(a) rank list. The same shows that up to Ext.P6, the Port Trust was also considering the appointment as by direct recruitment as per Ext.P2(a) rank list. It is after Exts.P7 and P8 objections were filed by respondents 4 and 5 a turn around happened and the Port Trust decided to restore the seniority on the basis of the seniority in the post of Mazdoors. I do not think that that can be done. Admittedly the recruitment rules provide for only direct recruitment. It does not provide either for promotion or by recruitment by transfer. The Port Trust cannot make appointments in violation of recruitment rules in force in Cochin Port Trust, which according to me are statutory in character since they are issued under powers conferred under W.P(C) No. 16350 of 2004 -7- the Major Port Trust Act. Once it is settled that the method of recruitment is by direct recruitment, then the same has to be after a process of selection. It cannot be disputed that a process of selection has been undergone by the petitioner and respondents 4 to 6 in which the petitioner came on top. It is settled law that in cases of direct recruitment, seniority shall be in the order of rank in the rank list for selection. If that be so, the petitioner has to be senior to respondents 4 to 6 in the cadre of Oilman (Power House). It is declared so. Consequently, Exts.P9 and P11 are quashed. Since further promotions from the post of Oilman has to be in accordance with that seniority and the 4th respondent has been promoted further in violation of that seniority, that too subject to the result of this writ petition that also cannot be sustained. It is stated before me that subsequently, the 5th respondent was also promoted subject to the result of this writ petition. Therefore it is declared that all promotions in violation of seniority position in Ext.P6 are unsustainable. Consequently, all further promotions is violation of such seniority position as between petitioner and respondents 4 to 6 are liable to be reviewed and the petitioner shall be given W.P(C) No. 16350 of 2004 -8- his due promotions ahead of respondents 4 to 6 as on the earliest date of such promotions. Orders in implementation of the above shall be issued by the competent among respondents 1 to 3, as expeditiously as possible, at any rate, within one month from the date of receipt of a copy of this judgment. Although, petitioner presses for monetary benefits also, insofar as the petitioner has not worked in the promoted post, I direct that the retrospective promotions to be granted to the petitioner shall be only notional without monetary benefits. But the petitioner shall be entitled to all other consequential service benefits other than monetary benefits. The writ petition is allowed as above. sd/- S. SIRI JAGAN, JUDGE rhs // True copy // PA to Judge