IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 17TH FEBRUARY 2009 / 28TH MAGHA 1930 WP(C).No. 10275 of 2006(W) -------------------------- PETITIONER: --------------- K.VELAPPAN, GODOWN KEEPER (HIGHER GRADE), KERALA STATE WAREHOUSE, PATHANAMTHITTA, KODUMTHARA, PATHANAMTHITTA. BY ADV. SRI.MURALI PURUSHOTHAMAN ADV. SRI.P.M.BENZIR ADV. SRI.DEEPU LAL MOHAN RESPONDENTS ------------------------- 1. THE KERALA STATE WAREHOUSING CORPORATION REPRESENTED BY ITS MANAGING DIRECTOR, HEAD OFFICE, ERNAKULAM, POST BOX NO.1727, COCHIN-682 016. 2. THE MANAGING DIRECTOR, KERALA STAE WAREHOUSING CORPORATION, HEAD OFFICE, ERNAKULAM, POST BOX NO.1727, COCHIN-682 016. 3. THE STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF AGRICULTURE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. R1 AND R2 BY ADV. SRI.N.D.PREMACHANDRAN ADV. SRI.MAJNU KOMATH, SC, K.S.W.C. R3 BY GOVERNMENT PLEADER ADV. SHRI V.T.K. MUHAMMED. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 10275 of 2006(W) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : THE PHOTOCOPY OF LETTER DATED 08.09.1994 ADDRESSED TO THE 2ND RESPONDENT BY THE PETITIONER EXT.P2 : THE PHOTOCOPY OF ORDER NO. KSWC/Est/PROMOTION/ 94-95 DATED 26.09.1994. EXT.P3 : THE PHOTOCOPY OF LETTER DATED 14.07.1998 ADDRESSED TO THE SECOND RESPONDENT BY THE PETITIONER. EXT.P4 : THE PHOTOCOPY OF PROCEEDINGS NO. KSWC/Est/PROMOTION/ 98-99 DATED 16.09.1998. EXT.P5: : THE PHOTOCOPY OF PROCEEDINGS NO. KSWC/Est/ GRADE PROMOTION/ 98-99 DATED 09.12.1998. EXT.P6 : THE PHOTOCOPY OF PROCEEDINGS NO. KSWC/Est/GODOWN KEEPER/2003-04 DATED 31.05.2003. EXT.P7 : THE PHOTOCOPY OF LETTER DATED 12.08.2003 ADDRESSED TO THE SECOND RESPONDER BY THE PETITIONER. EXT.P8 : THE PHOTOCOPY OF PROCEEDINGS NO. KSWC/Est/ GRADE PROMOTION/K.V./2003-04 DATED 09.02.2004.. EXT.P9 : THE PHOTOCOPY OF REPRESENTATION DATED 15.03.2004 SUBMITTED BY THE PETITIONER. EXT.P10 : THE PHOTOCOPY OF REPRESENTATION DATED 28.04.2004 SUBMITTED BY THE PETITIONER. EXT.P11 : THE PHOTOCOPY OF PROCEEDINGS NO. KSWC/Est/ GRADE PROMOTION/2004-05 DATED 16.09.2004.. EXT.P12 : THE PHOTOCOPY OF G.O.(P)No. 20/2004/P &ARD DATED 10.12.2004 ISSUED BY THE GOVERNMENT. EXT.P13 : THE PHOTOCOPY OF REPRESENTATION DATED 16.02.2005 SUBMITTED BY THE PETITIONER. /TRUE COPY/ P.R. RAMACHANDRA MENON, J. ........................................................................ W.P.(C) No.10275 OF 2006 ......................................................................... Dated this the 17th February, 2009 J U D G M E N T The petitioner is aggrieved by Exts.P8 and P11 orders whereby his request for granting second Time Bound Higher Grade Promotion on completing 23 years' of service was rejected; simultaneously cancelling the earlier Time Bound Higher Grade Promotion given to him on completion of 18 years' of service way back in 1988 vide Ext. P8, followed by steps for recovery of the excess amount, stated as already paid to him. It is contended by the petitioner that Ext. P11 order of recovery has been passed without affording an opportunity to hear the petitioner and further that all other persons including his juniors as shown in Ext.P5 have already been granted the relief, which, hence, is stated as discriminatory and is under challenge. 2. The petitioner originally started his career as a Class IV employee under the first respondent in 1980. Subsequently on 19.08.1994, the petitioner was promoted as Godown Keeper which, however, was declined by him because of some personal W.P.(C) No.10275 OF 2006 2 inconvenience. Ext.P1 is the relinquishment letter which is seen as accepted by the second respondent vide Ext. P2 order. After about four years, the petitioner submitted Ext. P3 representation seeking to withdraw Ext. P1 relinquishment letter, which in turn was accepted by the second respondent on the basis of which, the petitioner was given promotion as Godown Keeper vide Ext. P4. 3. On completing 18 years of service, the petitioner was given the benefit of Time Bound Higher Grade Promotion vide Ext. P5 along with 62 other persons. According to the petitioner, he became eligible for getting the next Time Bound Higher Grade Promotion on completing 23 years' of service in 2003, which, accordingly was sought for, by submitting Ext. P7 representation, particularly when other similarly situated persons were stated as given the benefit vide Ext. P6. On considering the request of the petitioner, the second respondent held that the petitioner being a person having already relinquished the promotion, was not entitled to get the benefit of Time Bound Higher Grade Promotion as per the relevant rules and that for the very same reason, he W.P.(C) No.10275 OF 2006 3 was not eligible to get the benefit already given to him vide Ext. P5 as well. Accordingly, the benefit given to the petitioner vide Ext. P5, i.e., the Time Bound Higher Grade on completing 18 years was also cancelled by the second respondent vide Ext.P8, simultaneously denying the claim for next Time Bound Higher Grade Promotion on completing the total period of 23 years and ordering recovery of the excess payment. Ext. P8 was followed by Ext. P11 order for recovery of the amount stated as drawn by the petitioner is excess. The Writ Petition has been filed challenging Ext. P8 and Ext. P11 orders on different grounds. 4. The impugned action is sought to be sustained from the part of the respondents stating that as per G.O.(P)No. 3000/98/Fin dated 25.11.1998, the benefit of Time Bound Higher Grade Promotion cannot be extended to a person who has relinquished the regular promotion as stipulated in paragraph 12 of the said Government Order (paragraph 12 of the counter affidavit). It is submitted by the learned counsel for the petitioner that the said stipulation cannot have any adverse effect on the petitioner, in so far as the earlier promotion given W.P.(C) No.10275 OF 2006 4 to the petitioner was only temporary and that the relinquishment was also temporary in nature. It is asserted by the learned counsel that relinquishment of 'temporary promotion' cannot entail any adverse consequence, as the law contemplates relinquishment of a 'regular promotion' alone as a bar. 5. On going through Ext. P1 there is absolutely no mention of any temporary promotion. On the other hand, it is evident that the petitioner was very well aware of the promotion given to him on a 'regular basis' and that the relinquishment made by him was in respect of such regular promotion. Further, Ext.P1 request made by the petitioner was accepted by the second respondent as per Ext. P2, permitting the petitioner to relinquish the promotion as Godown Keeper and allowing him to continue in the post from which he was promoted. It is also evident from this order as well, that the promotion given to the petitioner and the relinquishment made by him was a 'regular promotion' and not any 'temporary promotion', which makes the contention put forth by the petitioner as devoid of any merit. 6. It is true that the benefit of Time Bound Higher Grade W.P.(C) No.10275 OF 2006 5 Promotion extended to the petitioner vide Ext. P5 was issued on 09.12.1998. But the provision stipulates that the persons who relinquished the regular promotion will not be entitled to get the Time Bound Higher Grade Promotion, as envisaged under paragraph 12 which was brought into effect from 01.11.1998, as pointed out by the learned Government Pleader who appears for the third respondent. But then, it is pointed out from the part of the petitioner that the petitioner has been isolated and discriminated in so far as Ext.P5 has extended the benefit to 62 other persons including the juniors of the petitioner, while the benefits have been denied only in respect of the petitioner by passing Ext.P8 order after six years, which, hence, is cited as an instance of arbitrariness and clear discrimination. 7. On hearing all the parties concerned, this court finds that there is no proper justification for confining the benefit of Ext.P5 only to 62 persons and discriminating the petitioner alone, that too, 6-8 years after granting the benefits . It is seen that the petitioner has already preferred Ext.P13 representation before the second respondent pointing out his grievances and W.P.(C) No.10275 OF 2006 6 seeking for redressal of the same. The petitioner is at liberty, if he thinks it proper, to supplement the same by filing another representation along with the requisite materials within two weeks from today, to substantiate his case. In the said circumstances, the second respondent is directed to consider Ext. P13 and the supplemental representation, if any, on merits, with reference to the benefit already stated as extended to 62 other persons as shown in Ext.P5 list and shall pass appropriate orders thereon, within three months from the date of receipt of a copy of the judgment. It is made clear that till finalisation orders to be passed on Ext. P13, all consequential proceedings pursuant to Exts.P8 and P11 shall be kept in abeyance and sustainability of Exts. P8 and P11 will depend upon the order to be passed by the second respondent afresh. The Writ Petition is disposed of as above. P.R. RAMACHANDRA MENON, JUDGE. lk