IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 4TH AUGUST 2010 / 13TH SRAVANA 1932 WP(C).No. 29329 of 2008(N) -------------------------- PETITIONER(S): --------------- C.V.SUNIL,AGED 42 YEARS, S/O.C.I.VALSAN, TOKEN NO.374, TRACO CABLE COMPANY, IRIMPANAM, R/AT.VRINDAVAN KAMBBIVELIKKAKAM, VAZHAKKALA, KOCHI-30. BY ADV. SRI.K.RAMAKUMAR, SENIOR ADVOCATE SMT.SMITHA GEORGE RESPONDENT(S): --------------- 1. TRACO CABLE COMPANY LTD.(A KERALA GOVT. COMPANY ), REP. BY ITS MANAGING DIRECTOR REGD. OFFICE XXVII/1242, KSHB OFFICE COMPLEX, PANA MPILLY NAGAR, PB.NO.2404, COCHIN-36. 2. STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF INDUSTRIES GOVERNMENT OF KERALA, TRIVANDRUM. 3. K.J.SEBASTIAN, SEMI SKILLED TRACO CABLE COMPANY LTD., REG. OFFICE, KSHB OFFICE COMPLEX, PANAMPILLY NAGAR, KOCHI-36. ADV. SRI.E.K.NANDAKUMAR FOR R1 SRI.A.K.JAYASANKAR NAMBIAR FOR R1 SRI.S.P.ARAVINDAKSHAN PILLAY FOR R3 SMT.N.SANTHA FOR R3 SRI.S.A.ANAND FOR R3 GOVERNMENT PLEADER SRI.T.T.MUHAMOOD THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28.5.2010, THE COURT ON 04/08/2010 DELIVERED THE FOLLOWING: W.P(C)No.29329/2008 APPENDIX PETITIONER'S EXHIBITS: EXT.P1. TRUE COPY OF THE MEMORANDUM OF SETTLEMENT DATED 12.2.1997 BETWEEN THE MANAGEMENT AND THE EMPLOYEES OF THE TRACO CABLE COMPANY. EXT.P2. TRUE COPY OF THE NOTICE DATED 29.7.2004 ISSUED BY R1. EXT.P3. TRUE COPY OF THE REPORT SUBMITTED TO R1 BY THE SELECTION COMMITTEE. EXT.P4. TRUE COPY OF THE REPRESENTATION DATED 14.9.2007 SUBMITTED BY THE PETITIONER BEFORE R1 ALONG WITH COPY OF THE JUDGMENT DATED 23.8.2006 IN W.P(C)No.32937 of 2004. EXT.P5. TRUE COPY OF THE REPRESENTATION DATED 18.8.2008 SUBMITTED BY THE PETITIONER BEFORE R1 ALONG WITH COPY OF THE RANK LIST. EXT.P6. TRUE COPY OF ANNEXURE ii (QUALIFICATION REQUIRED FOR THE PRESCRIBED POST) EXT.P7. TRUE COPY OF THE MEMO DATED 30.4.1996 FOR APPOINTMENT OF FORKLIFT OPERATOR. EXT.P8. TRUE COPY OF THE COUNTER AFFIDAVIT DATED 8.4.2005 OF SRI.G.MOHANDAS, FORMER MANAGING DIRECTOR ALONG WITH EXHIBIT AND INDEX. EXT.P9. TRUE COPY OF THE ADDITIONAL AFFIDAVIT DATED 28.4.2006 OF SRI.G.MOHANDAS, FORMER MANAGING DIRECTOR ALONG WITH EXHIBIT AND INDEX. EXT.P10. TRUE COPY OF THE OFFICE ORDER DATED 8.5.2006 ISSUED TO R3 BY R1. EXT.P11. TRUE COPY OF THE MEMORANDUM OF SETTLEMENT DATED 15.3.2006. EXT.P12. TRUE COPY OF THE OFFICE ORDER DATED 22.7.2008 ISSUED TO ONE JOSE MARTIN. EXT.P13. TRUE COPY OF THE ORDER DATED 22.7.2008 ISSUED TO ONE HAMEED P.K. W.P(C)No.29329/2008 RESPONDENT'S EXHIBITS: EXT.R1(a). TRUE COPY OF THE OFFICE ORDER DATED 30.5.2001 EXT.R1(b). TRUE COPY OF THE AUDITED STATEMENT OF ACCOUNTS OF THE 2ND RESPONDENT. EXT.R2(c). TRUE COPY OF THE OPTION SUBMITTED BY THE 3RD RESPONDENT DATED 17.4.2006. EXT.R2(d). TRUE COPY OF THE CANCELLATION ORDER DATED 30.10.2006 / TRUE COPY / P.S.TO JUDGE P.N.RAVINDRAN, J. ----------------------------------------- W.P(C).No.29329 of 2008 ----------------------------------------- Dated this the 4th day of August, 2010 JUDGMENT The petitioner is presently employed as a semi-skilled worker in Traco Cable Company Limited, the first respondent herein. The company entered into Ext.P1 memorandum of settlement with its workers on 12.2.1997 as per which it was agreed by and between the parties that promotion of workmen will be according to the promotion policy which forms part of the agreement. In the promotion policy which forms part of Ext.P1 settlement it was stipulated that vacancies in the designated posts will be filled up by selection from semi skilled employees having the required qualification and two years service experience by internal notification as indicated in Annexure II to the agreement. The post of Record Keeper/Assistant Record Keeper (SS/US) was one such designated post. 2. Pursuant to Ext.P1 settlement, the Managing Director of the first respondent company issued Ext.P2 notice dated 29-7-2004 inviting applications from permanent employees of the company having the requisite qualification and service experience for W.P(C).No.29329 of 2008 -:2:- filling up one vacancy of Record Keeper in the registered office of the company. The applications were to be routed through the respective Unit Heads. The last date for submission of applications was 14.8.2004. It was stipulated that applicants who possess the prescribed qualification with experience will be called for interview. Pursuant to Ext.P2 notification, the petitioner and eight others applied. All of them were found qualified and called to attend the interview held on 25-10-2004. Three out of the nine candidates did not appear for interview. The remaining six candidates including the petitioner appeared for the interview. The Interview Committee interviewed them and ranked them and thereafter submitted Ext.P3 report to the Managing Director of the first respondent company. The petitioner was ranked first. 3. It appears, while the selection process was under way, the Traco Cable Company Employees Union (CITU) along with Sri.Baburaj.T.P. a Grade III Operator, filed W.P(C) No.32937 of 2004 in this Court challenging the steps taken by the company to fill up the vacant post of Record Keeper. It was contended that the said vacancy can be filled up only through the Kerala Public Service Commission. In that writ petition this Court passed an interim order staying the selection process. While the W.P(C).No.29329 of 2008 -:3:- said writ petition was pending, the third respondent herein, who was rank No.2 in Ext.P3 ranked list, was appointed as Record Keeper. W.P(C)No.32937 of 2004 was dismissed by Ext.P4 judgment delivered on 23.8.2006. The petitioner thereupon submitted a representation dated 14.9.2007 followed by Ext.P5 representation dated 18.8.2008 requesting the Managing Director of the company to appoint him as Record Keeper without delay. He had along with Ext.P5 representation submitted a copy of the representation dated 14.9.2007 submitted by him earlier. The instant writ petition was filed on 31.8.2008 seeking a direction to the first respondent to appoint the petitioner as Record Keeper in the place of the third respondent. It is contended that as the petitioner was ranked first by the Selection Committee for appointment as Record Keeper and the challenge to the ranked list has been repelled by this Court, the first respondent is bound to appoint the petitioner as Record Keeper. 4. The Managing Director of the first respondent company has sworn to a counter affidavit dated 15.10.2008. It is stated that Sri.C.L.Francis, Record Keeper in the registered office of the company at Ernakulam retired on superannuation on 30.6.2000, that the said vacancy was notified to be filled up by W.P(C).No.29329 of 2008 -:4:- Ext.P2 notification dated 29.7.2004, that the Selection Committee had after the selection held pursuant to the said notification, placed a list of candidates before the then Managing Director, that the select list was approved by the Managing Director with the noting that it shall be valid for one year, that even before the rank list was published, the Traco Cable Company Employees Union (CITU) and another workman filed W.P(C)No.32937 of 2004 in this Court and by order passed on 12.11.2004 this Court stayed further proceedings pursuant to Ext.P2 notification, that the said writ petition was dismissed by Ext.P4 judgment delivered on 23.8.2006, that the third respondent was not appointed as Record Keeper as contended by the petitioner, that the third respondent was only transferred from Irimpanam Unit to the registered office as per Ext.R1(a) order dated 30.5.2001 and that no rank list of Record Keeper was published by the first respondent or operated upon. It was also contended that after being transferred from the Irimpanam Unit to the registered office of the company, the third respondent has been performing the duties of a Record Keeper, that the company is incurring loss since 2001-02 and therefore, the company is not in a position to fill up vacant posts as it would entail financial commitment. It was also contended that in case W.P(C).No.29329 of 2008 -:5:- the post is to be filled up, the company proposes to reserve the said post to be filled up by physically disabled candidates. 5. The petitioner has filed a reply affidavit dated 27.10.2008. The petitioner has produced along with the reply affidavit, the counter affidavit filed by the first respondent company in W.P(C)No.32937 of 2004 (Ext.P8) wherein it is stated that the vacancy of Record Keeper notified as per Ext.P2 is in the registered office of the company and that to reduce the financial commitment the company has resorted to internal recruitment. It is also stated therein that the post of Record Keeper comes under the worker category, that the Interview Board had interviewed the candidates and that only those who are qualified were called for the interview. The petitioner also produced the additional affidavit filed by the company in W.P(C)No.32937 of 2004 (Ext.P9), along with which the rank list prepared by the Interview Board was also produced. In Ext.P9 it was stated that the Managing Director has approved the list, that directions were also given to issue the appointment order as per the rank list, that in view of the order of stay passed by this court, the appointment order was not issued. The petitioner has also produced Ext.P10 office order dated 8.5.2006 issued by the Managing Director of the first respondent W.P(C).No.29329 of 2008 -:6:- company wherein it is stated that in view of the pendency of W.P (C)No.32937 of 2004 the third respondent will continue to work as Record Keeper in the semi skilled category till this Court takes a decision in the writ petition, that in the event of the decision being unfavourable to the company he will continue in the category of semi skilled with the nature of work as Record Keeper and that he will not be eligible for promotion as long as he continues to work as Record Keeper. The petitioner has also produced Ext.P11 memorandum of settlement arrived at between the company and its workmen which is referred to in Ext.P10. The company has filed a rejoinder affidavit and produced along with it as Ext.R2(c), the application dated 17.4.2006 submitted by the third respondent, which is referred to in Ext.P10. It is also stated relying on Ext.R2 (d) order dated 30.10.2006 that Ext.P10 order was cancelled, but it could not be acted upon in view of the interim order passed by this Court in W.P(C)No.28649 of 2006 and connected cases. 6. I heard Sri.K.Ramakumar, learned Senior Counsel appearing for the petitioner and Sri.E.K.Nandakumar, learned counsel appearing for the first respondent. Though the third respondent has been served he has not chosen to file a counter affidavit. Sri.K.Ramakumar, learned Senior Counsel W.P(C).No.29329 of 2008 -:7:- appearing for the petitioner, contended relying on the decision of the Apex Court in Purushottam v. Chairman, M.S.E.B., (1999) 6 SCC 49 that a duly selected candidate could not be denied appointment on the pretext that the term of the panel had expired and the post had been filled up by someone else. The learned counsel contended that as the petitioner has been ranked first by the selection committee and the third respondent is ranked only second, the selection being an internal selection pursuant to a memorandum of settlement, that right cannot be defeated by permitting the third respondent to work as Record Keeper and to deny that post to the petitioner on the ground that the company is facing financial problems. Per contra, Sri.E.K.Nandakumar, learned counsel appearing for the first respondent contended, relying on the decisions of the Apex Court in Subha B. Nair v. State of Kerala, (2008) 7 SCC 210 and S.S.Balu v. State of Kerala, (2009) 2 SCC 479, that it is open to the employer to decide whether the vacancy should be filled up or not and that in the absence of discrimination or arbitrariness, a writ Court would not ordinarily interfere in such matters. The learned counsel contended that as the first respondent has taken a conscious decision not to fill up the vacancy in view of the poor financial W.P(C).No.29329 of 2008 -:8:- condition of the company, the petitioner cannot seek appointment as he has no legal right to be appointed as Record Keeper. 7. I have considered the rival submissions made at the Bar by the learned counsel appearing on either side. It is evident from the pleadings that on the retirement of Sri.C.L.Francis, who was working as Record Keeper in the registered office of the first respondent company, on 30.6.2000 the post of Record Keeper fell vacant. It is also not in dispute that Ext.P2 notification was issued to fill up the said vacancy by internal recruitment, that the petitioner was ranked first in the interview, that Ext.P3 select list prepared by the three member interview committee was approved by the Managing Director on 2.11.2004 and that the Managing Director had on that day directed the appointment of the petitioner, who was ranked first in the ranked list, but in view of the interim order passed by this Court in W.P (C)No.32937 of 2004 the appointment order was not issued. 8. The vacancy of Record Keeper admittedly arose on 30.6.2000 on the retirement of Sri.C.L.Francis. The vacancy was not immediately notified for being filled up. Instead, the third respondent, a semi skilled worker was permitted to man the post. While W.P(C)No.32937 of 2004 was pending, the management and W.P(C).No.29329 of 2008 -:9:- the workers of the company entered into Ext.P11 settlement on 15.3.2006. In the statement it was stipulated as follows:- “4. If an employee, on his own desirous of continuing in a particular nature/grade of work, he can continue there on giving in writing to the company. In such cases he will not be eligible to be considered for promotions. However, on a future date he can express in writing the willingness to work in other areas. In such cases, he will have to forgo his seniority for such period between the two representations.” Relying on the said clause the third respondent submitted Ext.R2(c) representation dated 17.4.2006 to the Manager (P & A) of the first respondent company requesting that he need not be considered for promotion and may be permitted to continue in the present post. The third respondent had admittedly applied for appointment as Record Keeper pursuant to Ext.P2 notification. He participated in the interview held on 25.10.2004 and was ranked second. Therefore, he must necessarily yield place to the petitioner who was ranked first in the ranked list. However, relying on clause 4 of Ext.P11 settlement he submitted that he need not be considered for promotion and may be permitted to continue in the present W.P(C).No.29329 of 2008 -:10:- post thereby meaning that he may be retained in service as Record Keeper. In my opinion the third respondent could not have relied on clause 4 of Ext.P11 memorandum of settlement to continue in the post of Record Keeper. He could have on the terms of the said clause only continued as semi skilled worker. However, without properly noticing the non-applicability of clause 4 of Ext.P11 settlement in the matter of continuance in the category of Record Keeper, which is a promotion post, the Managing Director issued Ext.P10 order dated 8.5.2006 permitting him to work as Record Keeper with the rider that in the event of this Court deciding W.P (C)No.32937 of 2004 against the company he will continue in the category of semi skilled worker and work as Record Keeper and will not be eligible for promotion so long as he continues to do the work of Record Keeper. The said order, in my opinion, was patently illegal. Clause 4 of Ext.P11 memorandum of settlement would only permit the third respondent to continue as semi skilled worker. He could not have relied on the said clause to claim promotion to the category of Record Keeper. Realising the mistake in issuing Ext.P10 order the Managing Director cancelled it, though for a different reason. The cancellation was on the ground that clause 4 was meant to apply to those employees who are working W.P(C).No.29329 of 2008 -:11:- on working arrangement basis and the third respondent does not fall in that category. Whatever that be, by Ext.R2(d) order dated 30.10.2006 Ext.P10 order stands cancelled. However, in view of the interim order passed in W.P(C)No.29649 of 2006 and connected cases, Ext.R2(d) has not been implemented. 9. The facts stated above make it abundantly clear that the post of Record Keeper exists in the company, that pursuant to a decision taken by the management of the company to fill up the post by internal recruitment, Ext.P2 notification was issued, that thereupon Ext.P3 ranked list was published in which the petitioner was ranked first, that the said ranked list was approved by the Managing Director and that a decision was taken to appoint him. But in view of the interim order passed by this Court in W.P(C)No. 32937 of 2004 staying all further proceedings pursuant to Ext.P2 notification the petitioner was not appointed though a decision to appoint him was taken way back on 2.11.2004. Though W.P(C)No.32937 of 2004 was dismissed on 23.8.2006 and thereafter nothing stood in the way of the first respondent company from appointing the petitioner, the first respondent did not appoint him as Record Keeper. 10. It is evident from the materials on record that W.P(C).No.29329 of 2008 -:12:- Ext.P2 notification was issued pursuant to the settlement arrived at between the management of the first respondent company and its workmen. Under the terms of the said settlement, workmen like the petitioner and the third respondent were entitled to participate in the selection for appointment to the post of Record Keeper. A selection was conducted and the ranked list published was approved by the Managing Director and a decision taken to appoint the petitioner. However, the said decision could not be implemented in view of the interim order of stay passed by this Court in W.P(C)No.32937 of 2004 on 12.11.2004. The order of stay continued to be in force till the said writ petition was dismissed by judgment delivered on 23-8-2006. Therefore, during the period from 12.11.2004 to 23.8.2006 the ranked list could not be given effect to. In the meanwhile the post was being manned by the third respondent, who, as noticed earlier, was wrongly permitted to continue as Record Keeper even after W.P(C) No.32937 of 2004 was dismissed. As the post of Record Keeper was sought to be filled up by internal selection, I am of the opinion that the management cannot take the plea that the petitioner cannot be appointed as Record Keeper. The management has no case that the third respondent is not being paid the salary and W.P(C).No.29329 of 2008 -:13:- allowances applicable to the post of Record Keeper. The scale of pay of Record Keeper mentioned in Ext.P2 notification is Rs.1160- 3445. Such being the admitted factual situation I am of the opinion that the stand taken by the first respondent that the petitioner cannot be appointed as Record Keeper is not tenable. The first respondent has in Ext.P8, the counter affidavit filed in W.P (C)No.32937 of 2004 stated as follows:- “4. It is respectfully submitted that the appointments to the post of Record Keeper is made after notifying the vacancy on the notice board of the company for internal selection. The allegation of the conduct on the part of the company to by- pass the statutory requirement is only made up for the occasion. Following the requirement of Record Keeper at the Registered Office, the company decided to make appointments but however without adding any financial burden to the company. Thus it was advertised for appointments by internal notification and selection. The procedure followed for appointment is transparent and those who have the prescribed qualification were permitted to apply and those with requisite qualification were called for the interview. The Interview W.P(C).No.29329 of 2008 -:14:- Board constituted for the said purpose had interviewed the candidates.” In Ext.P9 additional affidavit filed in W.P(C)No.32937 of 2004 the Managing Director of the first respondent company had stated as follows:- “2. The above Writ Petition challenges the appointment to the post of Record Keeper. Pursuant to Exhibit P1, a committee was constituted for scrutinizing the applications and conducting the interview. A true copy of the note for the selection of Record Keeper is being produced herewith and marked as Exhibit R1(c). Pursuant to the proceedings after scrutiny of the applications an interview was conducted and a rank list is prepared by the Selection Committee as reported to the Managing Director, a true copy of which is produced herewith and marked as Exhibit R1(d). The selection which has been completed even before the filing of the writ petition has been kept pending due to the interim order of stay passed in the writ petition. However as the appointments have to be urgently made the above particulars are produced before this Hon'ble Court's perusal and for the final adjudication of the above writ petition. 3. The report has been furnished to the Managing Director and the same is approved for appointment by the Managing Director. W.P(C).No.29329 of 2008 -:15:- Directions were also issued to issue appointment order as per the rank list Exhibit R1(d). However, in deference to the orders of this Hon'ble Court appointment orders are not issued till date.” In the light of the stand taken by the first respondent company in Exts.P8 and P9 affidavits, the stand now taken by the first respondent that no ranked list of Record Keeper was published cannot be taken as correct. So also the stand taken by the first respondent that as the company is under financial stress it is not in a position to appoint the petitioner as Record Keeper cannot also be sustained. Likewise the stand that the company proposes to reserve the post of Record Keeper for being filled up by physically disabled candidates also does not merit acceptance. In my opinion with the dismissal of W.P(C)No.32937 of 2004 the company ought to have appointed the petitioner as Record Keeper in the post manned by the third respondent. The company which had initiated steps to fill up the post of Record Keeper pursuant to the terms of an industrial settlement/promotion policy cannot, in my opinion, be heard to contend that they will not give effect to the promotion policy and at the same time retain the third respondent as Record Keeper. As noticed earlier, the stand taken by the company in Ext.P8 counter affidavit is that appointment of W.P(C).No.29329 of 2008 -:16:- Record Keeper by internal recruitment will not cause any financial burden to the company. Further the third respondent, who is manning the post, is admittedly being paid salary in the scale of pay of Record Keeper. In the result, I allow the writ petition and declare that the petitioner is entitled to be appointed as Record Keeper pursuant to the inclusion of his name in Ext.P3 ranked list. I also direct the first respondent to appoint the petitioner as Record Keeper with effect from today in the place of the third respondent. Orders in that regard shall be issued within two weeks from the date on which the petitioner produces a certified copy of this judgment before the Managing Director of the first respondent company. The parties shall bear their respective costs. P.N.RAVINDRAN, Judge. ahg. P.N.RAVINDRAN, J. --------------------------- W.P(C).No.29329 of 2008 ---------------------------- JUDGMENT 4th August, 2010