IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 7TH JUNE 2010 / 17TH JYAISTHA 1932 OP.No. 20735 of 2002(R) ---------------------------------- PETITIONER: ------------------- M.NARAYANAN POTTY, GANGA SADANAM, NEMON, THIRUVANANTHAPURAM -20. BY ADVS. SRI.L.MOHANAN, SRI.D.SAJEEV. RESPONDENTS: ------------------------ 1. SECRETARY TO GOVERNMENT, INDUSTRIES (E) DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM. 2. THE MANAGING DIRECTOR, THE METROPOLITAN ENGINEERING COMPANY LTD., (GOVERNMENT OF KERALA UNDERTAKING) THAMPANNOOR, TRIVANDRUM -1. 3. ADDITIONAL SECRETARY TO GOVERNMENT, INDUSTRIES (H) DEPARTMENT, GOVT.SECRETARIAT, TRIVANDRUM. R1 & R3 BY GOVERNMENT PLEADER SRI. T.K. SAJEEV, THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 07/06/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 20735/2002-R: ORDER IN I.A. NOS. 12722/2003, 1035/2004 & C.M.P. NO. 35435/2002 IN O.P. NO. 20735/2002-R DISMISSED 07/06/2010. SD/- P.N.RAVINDRAN, JUDGE. APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE OFFICE ORDER DTD. 04/06/1976 SHOWING THE RECATEGORISATION OF POST OF THE PETITIONER AS ACCOUNTS ASSISTANT. EXT.P.2: COPY OF THE OFFICE ORDER DTD. 03/11/1979 EVIDENCING THE HANDING OVER OF FULL CHARGE OF THE ACCOUNTS SECTION TO THE PETITIONER. EXT.P.3: COPY OF THE LONG TERM AGREEMENT AND PAY ROLL SHEET EVIDENCING THE POSITION OF PETITIONER AS ON 01/04/1981. EXT.P.4: COPY OF THE OFFICE ORDER NO. 836/84 DTD. 11/04/1984 OF THE R.2. EXT.P.5: COPY OF THE ORGANISATION CHART OF THE COMPANY DURING 1985. EXT.P.6: COPY OF THE OFFICIAL NOTE PREPARED AND FORWARDED AFTER USING SEAL WITH SIGNATURE OF THE PETITIONER. EXT.P.7: COPY OF THE CIRCULAR RESOLUTION EVIDENCING THE DESIGNATION OF THE PETITIONER WHILE ENTERING ON LEAVE. EXT.P.8: COPY OF THE OFFICE ORDER DTD. 31/10/1990. EXT.P.9: COPY OF THE OFFICE ORDER DTD. 02/11/1990. EXT.P.10: COPY OF THE OFFICE ORDER DTD. 13/08/1993 OF THE R.2. EXT.P.11: COPY OF THE OFFICE ORDER DTD. 18/08/1998 OF THE R.2. EXT.P.12: COPY OF THE AGENDA OF THE BOARD MEETING DTD. 04/09/1992 AND ITS DECISION. EXT.P.13: COPY OF THE OFFICE ORDER DTD. 18/02/2000. EXT.P.14: COPY OF THE OFFICE ORDER DTD. 21/07/2000. O.P. NO. 20735/2002-R: EXT.P.15: COPY OF THE JUDGMENT IN O.P. NO. 22181/2000. EXT.P.16: COPY OF THE ORDER NO. G.O.(RT).571/2002/ID DTD. 04/07/2002. EXT.P.17: COPY OF THE LETTER OF THE R.2. EXT.P.18: COPY OF THE LETTER NO. 3521/85 DTD. 19/12/1985. EXT.P.19: COPY OF THE SALARY CERTIFICATE ISSUED TO THE PETITIONER. EXT.P.20: COPY OF THE RELEVANT PAGES OF THE AGENDA OF THE BOARD MEETING. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. P.N.RAVINDRAN, J. ---------------------------- W.P.(C)No.20735 of 2002 ---------------------------- Dated 7th June, 2010 JUDGMENT The petitioner entered service as unskilled worker in the Metropolitan Engineering Company (Private) Ltd., a Government of Kerala undertaking on 15.7.1974. Thereafter he passed the B.Com Degree Examination in the year 1976. He was thereupon posted in the accounts section as Accounts Assistant as per Ext.P1 order dated 4.6.1976. While matters stood thus, Sri.G.Ramachandran Nair who was in charge of the accounts section of the company for the purpose of audit, left the service of the company in October, 1976. Thereupon, the petitioner was given charge of the accounts section. The petitioner availed long leave for three years and three months during the period from 27.7.1987 to 31.10.1990. He rejoined duty after the expiry of leave on 31.10.1990. On that day Ext.P8 order was issued to the effect that he will hold temporary charge of Accountant. In that order, he was designated as Accounts Assistant Grade I. By Ext.P9 office order dated 2.11.1990 the Managing Director of the company ordered that the designation of the petitioner will be Accountant. O.P.No.20735/2002 2 2. The petitioner again availed leave for a period of five years from 4.8.1993 to 5.8.1998. When he rejoined duty on 4.8.1998 he was reposted as Accounts Assistant Grade I, the post which he was substantively holding. Ext.P11 order was thereupon passed on 18.8.1998 sanctioning the revised scale of pay applicable to the said post. Thereafter, he was also paid the sum of Rs.500/- per mensem as special allowance. Long after rejoining duty on 4.8.1998 the petitioner submitted a representation dated 3.1.2001 contending that he has been reverted to an inferior post. He also contended that he is entitled to payment of salary and allowances in the scale of pay of Accountant and for grade promotions. He thereafter filed O.P.No.22182 of 2001 in this Court. By Ext.P15 judgment delivered on 30.7.2001 at the stage of admission, this Court directed the Government to consider the said representation and take an appropriate decision thereon. The Government thereafter passed Ext.P16 order dated 4.7.2002 rejecting the petitioner's request. Ext.P16 is under challenge in this original petition wherein the petitioner seeks the following reliefs: “(i) Call for the records which may leads to the passing of Exhibit P16 and to quash the same as illegal, arbitrary and ultra vires. (ii) To declare that petitioner was holding the post of Accountant in the Metropolitan Engineering O.P.No.20735/2002 3 Company and he cannot be reverted unilaterally to a post inferior to the post which he was holding in the company since 1.4.1981. (iii) Issue a writ of mandamus or any other appropriate writ, direction or order commanding the respondents to fix the pay scale of the petitioner to the post of Accountant in the company especially in view of Exhibit P12 Board decision and P20 Board discussions and to disburse salary and arrears of salary to the petitioner deducting the amount which he has received in the absence of the pay scale. (iv) to issue a writ of mandamus or other appropriate writ, direction or order commanding the 2nd respondent to order grade promotion to the petitioner for the work done in a single category for more than 10 years by virtue of Government order No.G.O.(Ms)No.84/97/ID dated 10.6.1997.” The main contention raised by the petitioner is that with effect from 1.4.1981 he is functioning as Accountant of the company and therefore he is entitled to have the scale of pay of Accountant and also grade promotions in the said post. 3. The respondents have filed a counter affidavit resisting the original petition. It is contended that the petitioner was never appointed as Accountant in the company, that there is no post of Accountant in the company and that the petitioner was only designated as Accountant for the purpose of audit as certain documents had to be certified by an Accountant. It is also contended that when the petitioner rejoined duty in the year 1990 and later in O.P.No.20735/2002 4 1998 after the expiry of the leave, he was posted against the post of Accounts Assistant which he held earlier and that he has not been reverted for the reason that he was never appointed as Accountant on a permanent basis. 4. I heard Sri.D.Sajeev, learned counsel for the petitioner and Sri.T.K.Sajeev, learned Government Pleader appearing for the respondents. I have also gone through the pleadings and the materials on record. The petitioner has not produced any document to show that the post of Accountant is a sanctioned post available in the company or that he was regularly appointed as Accountant. The documents produced by the petitioner would at best show that he was designated as Accountant while he was working as Accounts Assistant Grade II. Later he was promoted as Accounts Assistant Grade I. He thereafter went away on leave and rejoined duty on 31.10.1990. Ext.P8 office order was thereupon issued describing him as Accounts Assistant Grade I. By the said order it was also directed that he will hold temporary charge of the Accountant. Later by Ext.P9 it was ordered that his designation will be Accountant. He again went on leave and when he rejoined duty on 5.8.1998 he was reposted as Accounts Assistant Grade I which post he was substantively holding. It is relying on the designation of the O.P.No.20735/2002 5 petitioner as Accountant in the various documents produced in the case that he raised the contention that when he rejoined duty on 5.8.1998 he should have been posted as Accountant and given the scale of pay and allowances applicable to the category of Accountant. The petitioner has not pleaded or proved that the post of Accountant is a sanctioned post in the company. The Government have in Ext.P16 categorically stated that there is no post of Accountant in the company. The Government have also taken note of the fact that the petitioner has no case that he was appointed as Accountant. It is also stated that in the pay revision orders issued by the Government and in the long term settlement entered into between the management and the employees, no post of Accountant is referred to. The petitioner does not dispute these statements. Going by the pay revision orders and the agreement entered into between the management and the workers, the claim made by the petitioner cannot be sustained. The mere fact that for the purpose of audit the petitioner was described as an Accountant, will not in my opinion enable him to contend for the position that he should be given the scale of pay of Accountant when no such post is sanctioned and is available in the company. For discharging the duties of an Accountant, the petitioner was paid special allowance from time to O.P.No.20735/2002 6 time. In the absence of a sanctioned post the petitioner cannot merely relying on the fact that he was described as Accountant, contend that he was substantively appointed to that post. For the reasons stated above, I hold that there is no merit in the challenge to Ext.P16. The original petition fails and is accordingly dismissed. No costs. P.N.RAVINDRAN Judge TKS