IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN TUESDAY, THE 14TH JULY 2009 / 23RD ASHADHA 1931 WP(C).No. 13718 of 2008(G) --------------------------------------- PETITIONER: ------------------- SONY JACOB, S/O.LATE K.T. CHACKO, CONDUCTOR,KOTTAYAM DEPOT., KERALA STATE ROAD TRANSPORT CORPORATION, KOTTAYAM. BY ADV. MR.M.V.THAMBAN. RESPONDENTS: ------------------------ 1. KERALA STATE ROAD TRANSPORT CORPORATION, REPRESENTED BY THE CHAIRMAN & MANAGING DIRECTOR, TRANSPORT BHAVAN, EAST PORT, THIRUVANANTHAPURAM. 2. THE EXECUTIVE DIRECTIOR (A & E), OFFICE OF THE MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION, THRIRUVANANTHAPURAM. 3. THE DISTRICT TRANSPORT OFFICER, KERALA STATE ROAD TRANSPORT CORPORATION, KOTTAYAM DEPOT,KOTTAYAM. 4. VIKRAMAN NAIR, INSPECTOR, K.S.R.T.C. DEPOT., PAPPANAMKODE, THIRUVANANTHAPURAM. R1 TO R3 BY MR. K. PRABHAKARAN, SC, KSRTC. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.13718/2008-G: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ORDER NO. PL.10-0000775/07 DT. 17/01/07. EXT.P.2: COPY OF THE JUDGEMENT DTD. 19/10/2006 IN W.P(C).NO.12721/2005. EXT.P.3: COPY OF THE JUDGEMENT DT.06/02/2007 INW.P.(C).NO.2556/2007. EXT.P.4: COPY OF THE REPRESENTATION DT. 05/02/2007 SUBMITTED BEFORE THE R.1. EXT.P.5: COPY OF THE REPRESENTATION DT. 09/02/2007 SUBMITTED BEFORE THE RESPONDENT. EXT.P.6: COPY OF THE MEMORANDUM NO.PL10.000075/07 DT. 11/05/2007 ISSUED BY THE CHAIRMAN, KSRTC. EXT.P.7: COPY OF THE JUDGEMENT DT. 04/02/2008 IN W.P.(C).NO.6942/2007(B) BY THE HON. HIGH COURT. EXT.P.8: COPY OF THE ORDER PL10/025170/07 DT. 25/03/2008 BY THE PERSONAL MANAGER, KSRTC. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = W.P.(C).No.13718 of 2008-G = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 14th day of July, 2009. JUDGMENT “CR” 1.The petitioner joined the service of KSRTC on 6.9.1978. Due completion of probation in the entry cadre was declared on 1.8.1979. Thereafter, he enjoyed leave in terms of Appendix XII-A under Part I KSR from 21.11.1983 to 25.3.2003; rejoined duty on 26.3.2003 and is due to retire on 31.10.2009. He challenges Ext.P8 by which, his request for promotion to higher categories has been refused. 2.The fundamental ground on which the petitioner's claim for promotion is refused by the employer is that the period during which the petitioner enjoyed leave under Appendix XII-A of Part I of KSR is to be excluded for determination of seniority and it is, therefore, that the WP(C)13718/08 -: 2 :- petitioner is now continuing as a Conductor Grade-I. This cannot be. This is because, seniority is a continuous flow from entry into service and can be retarded and crippled only by the different incidents provided for in Rule 27, particularly, sub-rule (c) thereof, in Part II of K.S. & S.S.R. None of those incidents as enumerated in Rule 27(c) of Part II of K.S.& S.S.R. has occurred in the career graph of the petitioner. A close reading of Rule 4 in Appendix XII-A under Part I K.S.R. would show that the deprivation of seniority in quality or quantity is never provided for on account of the grant or enjoyment of leave under Appendix XII-A. For this short reason, the impugned decision has to go. 3.Another ground put against the petitioner is that he had not obtained time bound higher grades and that this also stands in the way of the promotion. This also is unsustainable. The grant of time bound higher grade is one dependent on the contribution of labour made by the servant to WP(C)13718/08 -: 3 :- the establishment. If an incumbent is not actually working and carrying out the duties and responsibilities attached to the post, he may not be entitled to time bound higher grades. The very concept of time bound higher grades is built on the absence of appropriate promotional avenues and to keep the stagnating employees satisfied with upgradation in the financial packet. The non-conferment of a higher grade, in no manner, impairs seniority. Hence, that view in Ext.P8 is also found against. For the aforesaid reasons, the impugned Ext.P8 is quashed and in the result, this writ petition is allowed, further directing that the Managing Director of the KSRTC will re-consider the case of the petitioner in the light of what is stated above and take a decision de novo within a period of two months from the date of receipt of a copy of this judgment, having regard to the fact that the petitioner is due to retire by the end of October, 2009. If any financial benefits accrue WP(C)13718/08 -: 4 :- by virtue of this judgment, that would also be released without delay. Sd/- THOTTATHIL B. RADHAKRISHNAN, JUDGE. Sha/160709 -True copy- P.S.to Judge.