IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 2ND APRIL 2009 / 12TH CHAITHRA 1931 WA.No. 663 of 2009() -------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.23575/2005 Dated 02/01/2009 .................... APPELLANT/ PETITIONER ------------------------ B.M.ISHWAR S/O. BASAPPA, B.40, FACT TOWNSHIP, UDYOGAMANDAL, ERNAKULAM DISTRICT - 683 501. BY ADV. SRI.K.RAMAKUMAR, SENIOR ADVOCATE SRI.T.RAMPRASAD UNNI SRI.J.R.PREM NAVAZ RESPONDENTS/RESPONDENTS: --------------- 1. UNION OF INDIA, REPRESENTED BY THE PRINCIPAL SECRETARY, MINISTRY OF INDUSTRIES, SECRETARIAT, NEW DELHI. 2. THE FERTILIZERS AND CHEMICALS TRAVANCORE LIMITED, HEAD OFFICE, UDYOGAMANDAL, COCHIN-6893 501, REPRESENTED BY ITS CHAIRMAN & MANAGING DIRECTOR. 3. THE CHIEF PERSONNEL MANAGER, THE FERTILIZERS AND CHEMICALS TRAVANCORE LTD., UDYOGAMANDAL, COCHIN-6893 501. ADV. SRI.E.K.NANDAKUMAR FOR R2 & 3 SRI.A.K.JAYASANKAR NAMBIAR FOR R2 & 3 SRI.K.JOHN MATHAI FOR R2 & 3 SRI.P.BENNY THOMAS FOR R2 & 3 SRI.ANIL D. NAIR FOR R2 & 3 SRI.P.PARAMESWARAN NAIR, ASST.SG FOR R1 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 02/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & M.L.JOSEPH FRANCIS, JJ. -------------------------------- W.A. No. 663 OF 2009 --------------------------------- Dated this the 2nd day of April, 2009 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The appellant is the writ petitioner. Respondents herein were the respondents in the writ petition. 2. The brief facts of the case are the following: The appellant joined the services of the FACT as Technician (Thermal) in 1990 and his services were regularised in 1991. He is a diploma holder in Mechanical Engineering. He was also holding a certificate of proficiency in Boiler Operations issued by the Government of Karnataka. Now that certificate is registered with the Director of Factories and Boilers, Thiruvananthapuram also. The appellant submits, there is a Boiler in the Cochin division of the FACT. There was no person having the aforementioned certificate and therefore he was posted to the Cochin Division as an Engineer in charge of the said Boiler. But, he is not promoted to that post and therefore, this writ petition was filed seeking the following reliefs: W.A. No.663/2009 2 “i) to issue a writ in the nature of mandamus or any other appropriate writ, order or direction directing the respondents to promote the petitioner to the post of Deputy Plant Manager and to pay the emoluments accordingly. ii) to direct the respondents to promote the petitioner to the post of Engineer w.e.f. joining the service as Boiler Operation Engineer and thereafter as Assistant Plant Manager (shift in charge).” 3. The appellant relies on Ext.P7 communication of the FACT to the Director of Factories and Boilers dated 29.10.2003 which would show that he is treated as a qualified Engineer posted in charge of the Boiler. It is further fortified by the stand taken in Ext.P11 by the 2nd respondent. The communication dated 30.10.2003 addressed to the Director of Factories and Boilers states that the appellant, who is a BOE qualified Engineer, is in charge of the Boiler in the Cochin Division of the FACT. According to the petitioner, there is no other qualified hand in the feeder category for promotion to that post. Therefore, the respondents are bound to consider his claim for promotion as Engineer from the post of Technician. W.A. No.663/2009 3 4. The respondents filed a counter affidavit contending that the posting order of the appellant to FACT is Ext.R2(b). He has been posted to the Cochin Division only as a Technician (Thermal). In the seniority list of Technicians, he is rank No.12. There are 11 seniors to him. Two of them are having the aforementioned certificate also, it is submitted. There was a ban against promotions in force in the Company from 22.11.2002. The said ban is continuing even now. As soon as the said ban is lifted, the appellant's claim for promotion will be considered. The learned Single Judge after hearing both sides declined the reliefs sought for by the appellant. Hence this appeal. 5. The learned senior counsel, Sri.K.Ramakumar, who appeared for the appellant submitted that Exts.P7 and P11 would prove beyond doubt that the appellant was posted as an Engineer, but, he is not formally promoted to that post and other benefits due to that post are not granted. The same is illegal and unjustified. 6. The learned Standing counsel for the FACT submitted that the appellant is junior to 11 others. As per the recruitment rules, for promotion to the post of Engineer (Maintenance)/ W.A. No.663/2009 4 Process Engineer (Thermal Plant), which is the promotion post of Technician, the BOE certificate is not a mandatory qualification. It is also submitted that a person having BOE certificate has to be put in charge of the Boiler, but that person need not necessarily be an Engineer. He can be any employee of the Company. 7. It is common case that the appointment to the post of Engineer (Maintenance)/Process Engineer from the feeder category of Technicians is governed by the Rules called Promotion Policy. As per that policy, appellant, being in the feeder category, can insist that his claim should also be considered for promotion. But, in view of the ban introduced by the competent authority, which is even now in force, the respondents cannot be compelled to order promotions. Appointments, whether by promotion or direct recruitment, are essentially within the prerogative of the management. For valid reasons, the management can decide to keep the posts vacant without filling up the same by promotion or direct recruitment. But, if the posts are filled up, the same should be done only in accordance with the Promotion Policy/the Recruitment Rules. So, we feel that the learned Single Judge has rightly declined the W.A. No.663/2009 5 reliefs sought by the appellant. We feel that we cannot compel the management to promote the appellant to the cadre of the Engineer for the reason that he is having a BOE certificate and he is put in charge of a Boiler. Exts.P7 and P11 would show that the management has described him as an Engineer in charge of the Boiler Operation. But, in the absence of an appointment in accordance with the recruitment rules or promotion policy to that post, the appellant cannot claim that he has been promoted as Engineer or he should be promoted as Engineer. But, as and when promotions are ordered, the appellant's claim for promotion to the post of Engineer shall be considered in accordance with the relevant promotion policy. 8. The claim, if any, of the appellant to get higher salary on the basis of his present posting was not subject matter of the writ appeal and therefore we have not dealt with that. The Writ appeal is disposed of as above. (K.BALAKRISHNAN NAIR, JUDGE) (M.L.JOSEPH FRANCIS, JUDGE) ps