IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 28TH OCTOBER 2010 / 6TH KARTHIKA 1932 OP.No. 31797 of 2002(I) -------------------------------- PETITIONER(S): ---------------------- K.A. SALIM, BADGE NO.12352, CRAFTSMAN (INSTRUMENTATION) FACT (PETROCHEMICAL DIVISION) COCHIN. BY ADV. SRI.K.I.ABDUL RASHEED RESPONDENT(S): ------------------------- 1. THE FERTILIZERS & CHEMICALS TRAVANCORE LTD. (F.A.C.T.) REPRESENTED BY THE CHAIRMAN & MANAGING DIRECTOR, COCHIN. 2. THE CHIEF MANAGER (PERSONNEL) FACT (PD), COCHIN. 3. BENNY ANTONY, BADGE NO.12558, SNIOR CRAFTSMAN (INSTRUMENTATION) F.A.C.T., COCHIN. 4. SAJI K.GEORGE, BADGE NO.12557, SENIOR CRAFTSMAN (INSTRUMENTATION) F.A.C.T., COCHIN. 5. SADANANDAN P., BADGE NO.12248, SENIOR CRAFTSMAN (INSTRUMENTATION) F.A.C.T., COCHIN. 6. ANTOO K.V., BADGE NO.12560, SENIOR CRAFTSMAN (INSTRUMENTATION) F.A.C.T., COCHIN. 7. ZAVI K.J., BADGE NO.10670, SENIOR CRAFTSMAN (INSTRUMENTATION) F.A.C.T., COCHIN. R1 & R2 BY ADV. MR.E.K. NANDAKUMAR. THIS ORIGINAL PETITION HAVING BEEN F INALLY HEARD ON 28/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 31797 of 2002(I) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE POSTING ORDER NO.CPRM (ASCL)-AC-PER-1345 DATED 25/06/1990 ISSUED BY THE DY. PERSONNEL MANAGER (ASCL) FACT TO THE PETITIONER. EXT.P2: COPY OF THE RELEVANT PAGE OF PROMOTION POLICY SETTLEMENT. EXT.P3: COPY OF THE LETTER NO.CM(PER)-PD-PER-3069 DATED 08/10/2002 ISSUED BY THE MANAGER (PERSONNEL), FACT TO THE PETITIONER. EXT.P4: COPY OF THE ORDER NO.CPRM(PD) PER-264 DTED 15/12/1995 ISSUED BY THE CHIEF PERSONNEL MANAGER (PD), FACT TO THE 3RD RESPONDENT. EXT.P5: COPY OF THE ORDER NO.CM(PER)-PD-PER-3166 DATED 21/10/2002 ISSUED BY THE 2ND RESPONDENT TO THE 4TH RESPONDENT. EXT.P6: COPY OF THE ORDER NO.CM(PER)-PD-PER-3165 DATED 21/10/2002 ISSUED BY THE 2ND RESPONDENT TO THE 5TH RESPONDENT. EXT.P7: COPY OF THE ORDER NO.CM(PER)-PD-PER-3168 DATED 21/10/2002 ISSUED BY THE 2ND RESPONDENT TO THE 6TH RESPONDENT. EXT.P8: COPY OF THE REPRESENTATION DATED 26/10/2002 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT. EXT.P9: COPY OF THE MEMORANDUM OF SETTLEMENT ARRIVED AT THE CONCILIATION CONFERENCE HELD ON 25/05/2002. EXT.P10: COPY OF THE POLICY WITH RESPECT TO AVAILING OF SPECIAL LEAVE DATED 17/06/1996. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE rs S.SIRI JAGAN, J. ----------------------------------------- O.P NO. 31797 OF 2002 ---------------------------------------- Dated this the 28th day of October, 2010. JUDGMENT The petitioner joined the service of first respondent Company on 25.6.1990 as a Craftsman-cum-Apprentice. Subsequently, he was absorbed in the regular service of the company as Craftsman (Instrumentation) in 1991. The next promotion post to which the petitioner can aspire for is that of Senior Craftsman (Instrumentation). As per Ext.P2 Rules governing promotion to the post of Senior Craftsman(Instrumentation), the eligibility for such promotion is “at least 10 years service as Craftsman alone”. According to the petitioner, he having joined service on 25.6.1990 he had completed 10 years of service as Craftsman alone in 2000. There arose certain vacancies in the post of Senior Craftsman (Instrumentation) on 25.5.2002. By Ext.P3, the petitioner was called for an interview for selection to the post of Senior Craftsman (Instrumentation). Respondents 3 to 7 were also invited for the interview. According to the petitioner respondents 3 to 7 were not eligible to be considered for such promotion at that time since they had not have completed the minimum 10 years service as Craftsman alone required for such promotion. According to the petitioner, respondents 3 to 7 joined the service as Helper (Instrumentation) in 1988 and 1990 and they were posted as craftsman (Instrumentation) in accordance with the O.P NO. 31797 OF 2002 2 promotion policy settlement reached between the unions and the management on 16.7.1995. Therefore respondents 3 to 7 would acquire the minimum calculation of 10 years service as craftsmen alone only on 15.7.2005 is the petitioner's contention. The petitioner therefore contends that respondents 3 to 7 were not eligible to be considered for promotion at all. Despite the same, overlooking the petitioner's claim for promotion, respondents 3 to 7 were promoted as Senior Craftsmen by Ext.P5 and similar orders. According to the petitioner, the exclusion of the petitioner was on the ground that the petitioner availed of special leave for two years from 1.10.1995 to 30.9.1997 and that such period was wrongly excluded from computing the service of the petitioner as Craftsman (Instrumentation). According to the petitioner, in any event, as between the petitioner and respondents 3 to 7 the petitioner was the better qualified person and, therefore, respondents 3 to 7 could not have been promoted as senior craftsmen ahead of the petitioner. Petitioner therefore seeks the following reliefs: “i. To call for the records leading to this case and to quash the Exts.P4 to P7 promotion of 3rd to 6th respondents as Senior Craftsman (Instrumentation) by a writ of certiorari. ii. To issue a writ of mandamus or similar writ or direction or order commanding the respondents 1 & 2 to promote the petitioner to the post of Senior Craftsman(Instrumentation) forthwith. O.P NO. 31797 OF 2002 3 iii. To issue a writ of mandamus or similar writ or direction or order commanding the respondents 1 & 2 to consider Exhibit P8 representation submitted by the petitioner and to pass appropriate order promoting the petitioner to the post of Senior Craftsman(Instrumentation) forthwith.” 2. A counter affidavit has been filed by respondents 1 and 2 wherein the contention taken is that the petitioner is not entitled to have the period of leave availed of by him for accepting employment abroad for the period from 1.10.1995 to 30.9.1997, reckoned for calculating his service as Craftsman(Instrumentation) for promotion, and excluding that period, petitioner would satisfy the eligibility condition only on 24.6.2002, that is, one month after the date of occurrence of the vacancies and, therefore, he could not have been granted promotion. As far as respondents 3 to 7 are concerned the stand taken is that, in the Conciliation Settlement dated 25.5.2002, the unions had raised the issue of the erstwhile Helper (Instrumentation) designated as Craftsman (Instrumentation) in accordance with the provisions of Promotion Policy Settlement and it was clarified that their service as Helper (Instrumentation) will also be considered for reckoning, the 10 years' service as Craftsman (Instrumentation) for considering the eligibility for promotion as Senior Craftsman (Instrumentation). Therefore, according to the respondents 1 and 2, respondents 3 to 7 were eligible for promotion as Senior Craftsman O.P NO. 31797 OF 2002 4 (Instrumentation) as on 25.5.2002. They having entered service on 1988 and 1990 as Helper Instrumentation, which service is also liable to be counted as service as Craftsman(Instrumentation). 3. A reply affidavit has been filed by the petitioner, along with which the petitioner has produced the settlement referred to by the respondents, dated 25.5.2002 as Ext.P9. With the help of Ext.P9, the petitioner points out that there was no agreement as claimed by the respondents 1 and 2 in Ext.P9 that the service Helper (Instrumentation) would be counted for the purpose of reckoning service as Craftsman (Instrumentation) for promotion to the post of Senior Craftsman (Instrumentation). Therefore, the statement in paragraph 5 of the counter affidavit that it is pursuant to such settlement that the service of the respondents 3 to 7 as Helper (Instrumentation) for promotion to the post of Senior Craftsman (Instrumentation) is patently unsustainable he contends. He has also produced Ext.P10 along with I.A.No.13751 of 2006 which are the Rules regarding grant of special leave without pay. According to him going by clause 2.5 thereof, the special leave for accepting the employment abroad is liable to be included for the purpose of reckoning service for promotion. 4. In answer to the same, the counsel for respondents 1 and 2 with the support of paragraph 3 of the counter affidavit, argued that it O.P NO. 31797 OF 2002 5 was agreed that as per Conciliation Settlement dated 16.11.1995, work of Helper (Instrumentation) presently done by them will be carried out by Craftsman (Instrumentation). It would go to show that the service as Helper (Instrumentation) also can be construed as service as Craftsman (Instrumentation). In respect of the petitioners claim for counting special leave also as service, it is pointed out that as per Clause 2.5 of Ext.P10 only the seniority is preserved and the period of special leave cannot be counted as service for the purpose of promotion. 5. I have considered the rival contentions in detail. I am not inclined to agree that the contention of the respondents 1 and 2 in respect of the eligibility for promotion of respondents 3 to 7. Their contention is that the service put in as Helper(Instrumentation) should be construed as service as Craftsman (Instrumentation) on the basis of Conciliation Settlement dated 25.5.2002. They do not dispute the fact that Ext.P9 is that settlement. That settlement does not contain any provision to the effect that the service as Helper(Instrumentation) would be construed as service as craftsman(Instrumentation). Further in Ext.P2, the requirement is very clear to the effect that the eligibility condition is “Craftsman with at least 10 years' service as Craftsman alone”. The fact that on abolition of the post of Helper (Instrumentation), the Craftsman (Instrumentation) is expected to carry O.P NO. 31797 OF 2002 6 out the duties of Helper (Instrumentation) also, does not ipso facto mean that the service put in as Helper(Instrumentation) amounts to service as Craftsman (Instrumentation). Further apart from the submissions in the counter affidavit, the said averments are not supported by any documentary evidence at all. Admittedly respondents 3 to 7 became Craftsmen (Instrumentation) only on 16.7.1995. That being so as on 25.5.2002 they did not have the qualifications for promotion as Senior Craftsman namely 10 years of service as Craftsman alone. As such I have no doubt in my mind that respondents 3 to 7 were not eligible for consideration for promotion as senior craftsman. 6. That does not mean that the petitioner was eligible for promotion as Senior Craftsman (Instrumentation) on 25.5.2002. I do not find merit in the contention of the petitioner that the period of special leave is liable to be included as service for the purpose of promotion. Clause 2.5 of Ext.P9 does not come to the help of petitioner in that regard. The said Clause reads thus:- “2.5 Eligibility for consideration for promotion The employees availing special leave will not be eligible for consideration for promotion to higher posts that become vacant during the period of their special leave, even if actual filling up of the position is done after the employee joins back on expiry of special leave. However employees availing special leave will be eligible for promotion to posts that become vacant after their rejoining duty. In such cases there will not O.P NO. 31797 OF 2002 7 be any loss of seniority due to availing special leave.” A reading of the same would go to show that only the Seniority of the petitioner has been saved on account of the special leave. On the other hand it is specifically stated in Clause 2.5 that employees availing special leave will not be eligible for consideration for promotion to higher posts that become vacant during the period of their special leave, even if actual filling up of the position is done after the employee joins back on expiry of special leave. In Ext.P10, there is no provision to the effect that the period of special leave would be treated as service for the purpose of promotion. This Clause is some what similar to appendix XIIA of Part I of K.S. & S.S.R in State service, the period of leave for accepting employment abroad is not considered as service for any purpose. I am inclined to adopt the same standard for the first respondent also in view of the provisions in Ext.P10. The result of the above discussion is that petitioner also became qualified for consideration for promotion to the post of Craftsman (Instrumentation) only on 24.6.2002 whereas the vacancy occurred on 25.5.2002. 7. But at this distance of time I am not inclined to set aside the promotions on that ground. Admittedly the petitioner was also subsequently promoted as Senior Craftsman (Instrumentation). I am of opinion that in so far as there is no other claimant for the post ahead of O.P NO. 31797 OF 2002 8 petitioner and respondents 3 to 7, justice would be met if their seniority in the post of Craftsman (Instrumentation) is regulated accordingly. Therefore, I hold that in the post of Senior Craftsman (Instrumentation), the petitioner would rank as senior to respondents 3 to 7, which seniority will be carried over to all further promotions also. With the above direction, the original petition is disposed of. S.SIRI JAGAN, JUDGE mns